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 2015 Philip C. Jessup International Law Moot Court Competition

The 2015 Philip C. Jessup

International Law Moot Court Competition

The Federal Republic of Agnostica

vs.

The State of Reverentia

The Case Concerningthe Secession and Annexation ofEastAgnostica

Memorandum of Law and Authorities for Judges

International Law Students Association

Bench Memorandum for Judges
THE CASE CONCERNING EAST AGNOSTICA
Version 3.0
12 March 2015

***CONFIDENTIAL***

Only for use by Appointed Judges of the

2015 Philip C. Jessup Competition
Important Information regarding the Bench Memorandum
* The Bench Memorandum is a confidential document and should be read only by judges and
administrators of the Jessup Competition. Every possible measure must be taken in order to
maintain the confidentiality of the Bench Memorandum, including compliance with the
following guidelines:
o Do not leave copies of the Bench Memorandum lying in public places.
o Do not, in any circumstance, discuss the Bench Memorandum or its contents with anyone
else besides other Judges.
o Do not, in any circumstance, distribute the Bench Memorandum to team members or
team advisors, not even after the regional or national competition you have judged is
over.
* If you have received this Bench Memo, you are no longer eligible to assist a team in any manner,
including as a judge for practice oral rounds. Doing so could result in the disqualification of
the team from the competition. See Official Rule 2.14.
* The contents of the Bench Memorandum will remain confidential until the conclusion of the
International Rounds on April 11, 2015.
* The Bench Memorandum is copyright protected. Any entity that is not affiliated with ILSA or
the Jessup Competition must request permission to use or reproduce any portion of the Bench
Memorandum by emailing [email protected].
* The Bench Memorandum is an evolving document. As the competition season progresses, new
versions of the Bench Memorandum will become available. ILSA encourages judges and
competition staff to make sure they possess the most recent version of the Bench Memorandum.
ILSA welcomes comments and recommendations on the Bench Memo. Please send all suggestions to
[email protected].
 Table of Contents

I. PURPOSE OF THE BENCH MEM ORANDUM ..................................................................................... 5

II. SUM M ARY OF THE CASE ....................................................................................................................... 6

III. LEGAL ANALYSIS ..................................................................................................................................... 9

A. Question Presented 1: Non-Intervention into the Affairs of Other States and the Concept of
Territorial Integrity ................................................................................................................................... 9
1. T h e T hreat o f the U se o f Force ..................................................................................................................................... 10
2. Violation of the Non-Intervention Principle Through Support of a Secession M ovement .................................... 11
3. Evidence of an Act of Aggression ................................................................................................................................ 12
4. Resp o n sib ility to P rotect ............................................................................................................................................... 13

B. Question Presented 2: Secession and the Status of Seceded Territory ................................... 14

1. A re the A gnorev s a "Peop le"? ...................................................................................................................................... 15
2. Internal Self Determination in the Context of East Agnostica ................................................................................ 15
3. External Self-Determination in the Context of East Agnostica ................................................................................ 16
4. Rem ed ial S ecessio n ...................................................................................................................................................... 17
5. Secession - Legality v. Effectiveness ........................................................................................................................... 18
6. D isso lutio n .................................................................................................................................................................... 19
7. The Status of the Territory of East Agnostica .............................................................................................................. 20

C. Question Presented 3: The Legality of the Termination of a Treaty ....................................... 21

1. Shared Issues in Questions Presented 3 and 4 .............................................................................................................. 21
2. Fundamental Change of Circumstances ........................................................................................................................ 25
3. Termination as a Consequence of M aterial Breach ................................................................................................ 26
4. Permanent Sovereignty over Natural Resources ........................................................................................................... 28

D. Question Presented IV: Treaty Interpretation, Treaty Suspension, Countermeasures ..... 29

1. If the Marthite Convention was terminated / ownership of the software ................................................................. 30
2. If the Marthite Convention remains in force ................................................................................................................. 31

IV. APPENDIX A: INTRODUCTION TO INTERNATIONAL LAW ................................................ 37

A . G eneral .............................................................................................................................................. 37

B. Treaties .............................................................................................................................................. 37

C. Custom ary International Law ..................................................................................................... 38

D . G eneral Principles of Law ........................................................................................................... 38

E. Decisions and Publicists ................................................................................................................... 39

F. Burdens of Proof ..................................................................

39

V. APPENDIX B: TIM ELINE OF EVENTS ......................................................................................... 39

VI. APPENDIX C: GUIDE TO PEOPLE, PLACES, AND ACRONYMS ............................................. 43

VII. APPENDIX D: SUGGESTED QUESTIONS FOR THE ORAL ROUNDS ................................... 45

A. International Law Generally ...................................................................................................... 45

B. Question Presented 1 ........................................................................................................................ 45

C. Question Presented 2 ........................................................................................................................ 45

D. Question Presented 3 ........................................................................................................................ 46

E. Question Presented 4 ........................................................................................................................ 47

I. PURPOSE OF THE BENCH MEMORANDUM
The purpose of the Bench Memorandum is to provide judges in the Jessup Competition with basic
factual and legal information to enable evaluation of the written and oral performances of participating
teams. This Bench Memorandum should be read in conjunction with the 2015 Jessup Problem (the
"Compromis") and the Corrections and Clarifications to the Compromis.
The Compromis was designed to present the competitors with a balanced problem such that each side
has both strengths and weaknesses. Jessup teams should be able to construct good arguments as both the
Applicant and as the Respondent. As a judge, your task is to evaluate the quality of each team's analysis,
their knowledge of international law, and their advocacy skills. Please make sure not to confuse this task
with your own personal evaluation of the merits of the case.
Please note that this memorandum is not meant to be an exhaustive treatise on the legal issues raised in
the Compromis. In particular, judges should be aware that this Bench Memorandum has been condensed
as much as possible, and does not purport to cover all relevant issues in detail, though we do aim to
contextualize the law in a manner that is relevant to the issues of the Compromis. In many instances,
relevant case law is not discussed here, but should be addressed by the participants. The state practice
and legal authorities cited herein are illustrative and not intended to be a comprehensive review of all
relevant sources of law. As such, judges should not be surprised when participants present arguments or
authorities that may not be discussed in this memorandum. This does not suggest that such arguments
are not relevant or credible. Judges are encouraged to engage in their own independent research on the
issues if they wish to do so.
II. SUMMARY OF THE CASE
The 2015 Jessup Compromis focuses on issues of non-intervention into the affairs of other states,
territorial integrity in the face of a self-determination claim, the applicability of a treaty under what may
or may not be a fundamental change of circumstances, and countermeasures within the context of a
treaty dispute between two states -- Agnostica and Reverentia.
In the 18th century, the Kingdom of Credera colonized the Thanatosian Plains, a landlocked region
located in the Southern Hemisphere. The Plains have long been home to two ethnic groups - the
Reverentians and the Agnosticans. Credera immediately began administering the territory as two
separate colonies - Reverentia, located in the east, and Agnostica, located in the west.
Due to Reverentia's proximity to other Crederan colonies, it operated as a manufacturing and urban
trade centre. Agnostica's geographic isolation (due to its mountainous borders) led Credera to use it as a
source of raw materials due to its fertile land and abundant mineral resources. During the colonial era,
Reverentia remained ethnically homogenous. However, a large number of ethnic Reverentians
emigrated to Agnostica to take advantage of economic opportunities created by cross-border commerce.
Nearly all of the ethnic Reverentians settled in the eastern portion of Agnostica. A 1919 Crederan census
found Agnostica to be 70% Agnostican and 30% Reverentian. These Agnosticans of Reverentian
descent became known as the Agnorevs and they lived lives that were culturally similar to their
Reverentian brethren across the border.
In 1925, Agnostica and Reverentia became states when Credera granted independence to all of its
colonial holdings. On 1 August 1925, the Federal Republic of Agnostica and the State of Reverentia
were established according to Credera's previously established colonial borders. Though Reverentia was
established as a unitary state, Agnostica's federal constitution created two provinces: East Agnostica
(home to nearly all of the Agnorevs) and West Agnostica (almost entirely ethnic Agnostican). Under the
Agnostican constitution, control over cultural affairs and education was devolved to the provinces, while
all other matters were left to the federal government. The constitution also empowered the federal
parliament to dissolve the union and create two independent states by a three-quarters vote. Upon
decolonization, the majority of the Agnorev population chose to remain within Agnostica and continued
to do so despite multiple official Reverentian requests to return. These requests continued for
approximately 30 years after independence.
Reverentia began a process of rapid industrialization while Agnostica pursued an economic programme
focused on the harvest, extraction, and exportation of its abundant natural resources. One such natural
resource was the mineral Marthite, a naturally-occurring mineral salt which was known to possess
mildly restorative properties. Marthite has also always been a core ingredient in traditional Reverentian
medicine. Both Agnorevs and Reverentians valued Marthite as an essential element of their culture for
its use as a traditional medicine. East Agnostica is the only known location in the world of Marthite
reserves.
In order to secure Reverentian access to the Agnostican Marthite reserves, the two states embarked upon
a bilateral treaty known as the Marthite Convention. Concluded in 1938, the Marthite Convention
regulated the exploitation of Marthite in an effort to secure a supply for traditional users within
Reverentia and Agnostica. Reverentia was the only party who possessed the technology to mine
Marthite and the Convention consequently authorized Reverentia to build and maintain mining factories
in Agnostica. Agnostica, however, retained ownership over the factories. In exchange, Reverentia was
granted the exclusive purchasing rights to Marthite through the Reverentian Marthite Trust (RMT), a
state-owned Reverentian corporation. The Convention also gave RMT the exclusive rights to re-sell the
Marthite to traditional medicinal consumers at a fixed price. Outside sales were only permitted when the
Marthite supply exceeded demand by 25%. Until 2011, non-traditional demand was virtually non-
existent and the amount of Marthite mined only varied from traditional consumer demand by 5%.
In 2011, scientists from the Institut Luxembourgeois des Sciences Appliques (ILSA) discovered that
Marthite cured previously untreatable early-childhood autoimmune disorders, a discovery which rapidly
boosted its international market value. Within weeks of the study's release, RMT began selling 75% of
its Marthite stock to pharmaceutical companies at a price that far exceeded the Convention's fixed price,
creating a fear among traditional users that the sales would create a Marthite shortage. Agnostica decried
Reverentia's sales as a violation of the Convention and called for its termination. Reverentia objected
and continued selling Marthite to pharmaceutical companies. 60 days later, Agnostica provided
Reverentia a written notice of termination. Simultaneously, Agnostica entered into a lease with Baxter
Enterprises, Ltd., a multinational trading company for the facilities.
Reverentia rejected Agnostica's position and directed its on-site engineers to cease work in East
Agnostica and to render inoperable any Reverentian technology at the factories. In late April of 2012,
Baxter engineers arrived at the facilities only to find that the withdrawal of personnel and software had
crippled all Marthite operations. In an attempt to secure the supply of Marthite, the Agnostican
Parliament passed the Marthite Control Act, which banned the sale or transfer of Marthite into
Reverentia as well as the unauthorized sale, purchase, or possession of Marthite.
In mid-November of 2012, a young Agnorev miner, Gohandas Sugdy, was arrested with two pocketfuls
of Marthite. At his arraignment, Sugdy pleaded with the Agnostican judge to let him go so he could use
the Marthite as traditional medicine for his ailing grandfather. Reluctantly, the judge remanded Sugdy to
jail while stating that he believed the law to be too harsh. During the night of November 24, Gohandas
Sugdy committed suicide, leaving a note that read: "Forgive me, Grandfather." Four days later, Sugdy's
grandfather passed away from heart failure.
Sugdy's death sparked Agnorev protests across East Agnostica. Protests intensified from peaceful
demonstrations into increasingly violent clashes. On December 26, 2012, tensions rose to a boil and 60
Agnorevs died in a skirmish with the Agnostican police. Agnorevs would commemorate the day as the
Boxing Day Massacre. In the aftermath of the violence, Agnorev representatives in the Agnostican
Parliament attempted to pass a resolution to de-escalate violence in the East. The resolution failed.
On 5 January 2013, angry Agnorev politicians presented a motion before the Parliament requesting the
dissolution of the nation. The vote failed on almost entirely ethnic lines within the Agnostican
Parliament. Four days later, President Nuvallus delivered a speech publicly committing Reverentia to
the Agnorev cause, promising that if the Agnorevs wished to be free, Reverentia would "do everything
in [its] power to ensure that [freedom]". A day later, the Reverentian Parliament adopted a resolution
recognizing an independent state in East Agnostica in the event a popular referendum clearly
demonstrated the Agnorev's will to secede.
On 16 January, 2013, Agnorev representatives in the East Agnostican provincial assembly authorized a
secession referendum to take place on 29 January 2013. On 18 January, President Nuvallus ordered
several hundred Reverentian troops to the border with East Agnostica with orders to not leave
Reverentian territory. The referendum occurred on January 29 without any incident. 73% of the East
Agnostican voters voted for secession in an election where 90% of the province's population voted.
Furthermore, external observers declared the election to be free of irregularities.
The former representatives of the East Agnostican provincial assembly, now sitting as the self-styled
Agnorev People's Parliament (APP), ratified the secession and sent a delegation to Reverentia to
negotiate a swift integration of the territory of East Agnostica with the State of Reverentia. Despite
concern from the President of the Security Council and communiques emanating from several regional
organizations, President Nuvallus and Tomds Bien, the leader of the APP, announced the Integration
Agreement joining East Agnostica and Reverentia on 22 February 2013. Reverentian armed forces
promptly swept into East Agnostica. Two days later, on 24 February, the Reverentian Parliament
accepted and ratified the Agreement, which declared that the new borders were effective as of 1 March
2013. Prime Minister Moritz denounced the annexation but did not send troops into East Agnostica.
Subsequently, representatives from both sides negotiated the facts of the Compromis in preparation for
the proceedings before this Court.
III. LEGAL ANALYSIS
A. Question Presented 1: Non-Intervention into the Affairs of Other States and the Concept of
Territorial Integrity
The issue presented in QP 1 is a modern inquiry into the classic international law concept of non-
intervention by states into the domestic affairs of other states. Classical international law began as the
rules regulating the relationships between states. In order to ensure the sanctity of this international
system, states quickly developed the principle of non-intervention as a means to secure each individual
state's sovereignty despite entrance into this co-dependent system of law. As Oppenheim, a noted 19 th
century publicist, stated, the prohibition of intervention 1 is a "corollary of every state's right to
sovereignty, territorial integrity and political independence."
The United Nations has repeatedly clarified that states are strictly prohibited from intervening in the
domestic affairs of other states, most famously in Article 2.4 of the UN Charter, which prohibits the
threat or use of force against the territorial integrity or political independence of another state. 2 The non-
intervention principle, however, is not simply restricted to situations involving use of force, acts of
aggression, or armed conflict. It has been further clarified by the International Court of Justice to include
3
the concept that a state cannot intervene in a dictatorial way in the internal affairs of another state.
Within the NicaraguaDecision, the ICJ declared that the principle precisely forbids all States (or groups
of States) from directly or indirectly intervening "in the internal or external affairs of other States." 4 The
Court went on to clarify, however, that for an intervention to be prohibited, it must impinge on matters
that are directly within a state's sovereign rights. These include the choice of a political, economic, or
social and cultural system and the creation and formulation of foreign policy. 5 An intervention is,
therefore, "wrongful when it uses methods of coercion in regard to such choices, which must remain free
ones" unmarked by any evidence of coercion which would be evidence of a prohibited intervention. 6 In
Democratic Republic of the Congo v. Uganda, the Court affirmed that the Nicaragua Decision had
"made it clear that the principle of non-intervention prohibits a State "to intervene, directly or indirectly,
7
with or without armed force, in support of the internal opposition within a State."

Therefore, Applicant is expected to characterize specific Reverentian actions as an intervention that

subverts the political integrity of Agnostica. Good teams should have particularized arguments for
specific actions for which they have found support for their legality or illegality. Be wary of generalized
arguments that simply assume a certain act is "intervention" because, as stated above, there are legal

1 LASSA OPPENHEIM, Oppenheim's International Law at 428

2 U.N. Charter Art. 2.4

3 Military and Paramilitary Activities in and Around Nicaragua (United States/Nicaragua), 1986 I.C.J. 14.

4 id.

5id.
6 Id.

7 Armed Activities on the Territory of the Congo (DRC v. Uganda), 2005 LC.J 116.
standards for what can be characterized as an intervention. The question that you, as a judge, need to ask
yourself is whether the Applicant has demonstrated that Respondent's actions rose to the level of
"coercive behavior" under international law.

Agnostica' s Prayier- for- Relief Re\veren-tia's Prayier- for- Relief

Reverentia unlawfully interfered in Agnostica's Reverentia's actions were purely domestic acts
domestic affairs when it mobilized troops to the fully within their sovereign authority that did not
Agnostican border, supported the Agnorev rise to the international legal standard of what is
secession movement via its Parliamentary considered intervention into the affairs of
resolutions, and publicly stated support for the another state.
Agnorev population.

1. The Threat of the Use of Force

Applicant will likely argue that Reverentia's mobilization of forces to its border constitutes an open
threat of the use of force against Agnostica. According to Ian Brownlie, the threat of the use of force
exists when a state issues "an express or implied promise ...
of a resort to force [the avoidance of which
is] conditional on [accepting ...] certain demands of that [state]." 8 The key question here is whether
these troop movements constituted a threat to Agnostica and whether they were intended to create a
coercive effect on Agnostican domestic policy through the imposition of demands.
Applicant will contend that the timing of the troop movements occurred in a manner that clearly
evidenced an improper intent on the part of Reverentia, especially in conjunction with the Reverentian
Parliamentary resolution, which included a clause authorizing Reverentia to take all necessary measures
to ensure the security of a new East Agnostican state derived from the territory of Agnostica. An open or
direct threat of force used to compel another state into ceding its territory or political concessions is
commonly acknowledged as a violation of the prohibition of the threat against force in Article 2.4 of the
UN Charter. 9 Applicant will therefore argue that Reverentia has violated Article 2.4 with an illegal
threat of force.
Respondent will counter that its troop movements were fully within its sovereign rights as a state -
rights that include its exclusive authority to use the police power or force (within reason) within its own
territory. 10 Respondent will further argue that this act of state did not violate any acts of international
law as they all occurred within their own territory and that President Nuvallus issued explicit directions
to the armed forces not to enter into the territory consisting of East Agnostica. Respondent will contend
that, rather than looking at all of the circumstances as one totality, the Court should evaluate each event
on its own. Strong Respondents will cite to particular sections of the Nicaraguadecision which support
this. Furthermore, Respondent will allege that its troop movements were ordered in an effort to prevent
spillover violence into its own borders, while also offering that troop mobilization was a means to

8Ian Brownlie, International Law and the Use of Force by States (1st ed. 1963) at 364.

9Malcolm Shaw, International Law, (7th ed. 2008) at 724.

10Saudi Arabia v.Nelson 510 U.S. 349 (1993) (describing the concept of acte jure imperii or acts of state that are fully
within the sovereign rights of a state). See also supra n. 3
ensure the presence of aid for any Agnorevs fleeing what might be characterized as a humanitarian
crisis. However, characterizations of a humanitarian crisis will be hard to sustain, as the level of discord
and number of fatalities within East Agnostica (4 months of protests, 60 reported deaths, and several
wounded) pale in comparison to existing situations in Syria, Libya, and Sudan, where hundreds of
thousands died in what grew into full-blown civil wars.
Respondent can also argue that the ICJ has previously recognized similar armed forces maneuvers and
mobilizations as well below the standard of a threat of the use of force. 11 For example, in Nicaragua,
American military maneuvers near the Nicaraguan border were not considered to constitute a threat of
force. 12 Applicant may attempt to differentiate the specific maneuvers at hand in Nicaragua from this
situation by reminding the Court that the situation in Nicaragua referred to poorly-armed guerilla
fighters, whereas in this case, there are several hundred professional soldiers from the Reverentian
Army.
2. Violation of the Non-Intervention Principle Through Support of a Secession
Movement
In Democratic Republic of the Congo v. Uganda, the ICJ reiterated that the NicaraguaDecision had
"made it clear that the principle of non-intervention prohibits a State 'to intervene, directly or indirectly,
with or without armed force, in support of the internal opposition within a State.' ' 13 Applicant will argue
that Reverentia's Parliamentary resolution which declared its full support for the Agnorev secession
movement violated the principle of non-intervention because the resolution both prematurely recognized
East Agnostica and constituted aid to a secession movement within Applicant's sovereign territory.
Judges should note that the resolution, in its entirety, promises that the state of Reverentia will recognize
an unconstitutional referendum within in a neighboring state as both lawful and valid, promote the
recognition of this referendum, promote the efficacy of this referendum, extend diplomatic recognition
to the entity created from this referendum, and take all necessary measures to ensure that the security
and integrity of this new state.
i.) Premature Recognition
Applicant may also argue that the Reverentian Parliament's resolution, recognizing a new state in East
Agnostica, was a case of premature recognition constituting a violation of the non-intervention principle.
One of the earliest examples held to be an illegal case of premature recognition was the French
recognition of the American secession movement in 1778.14 The British Empire viewed this as an act of
war and consequently declared war on the French Empire. Modem states often characterize the choice of
whether to deem an entity a state as a political decision, though one within the context of an
international legal framework defined by the rules of statehood. 15 Article 1 of the Montevideo
Convention is considered customary international law when it comes to defining a state, 16 and both

11See supra n. 3 227.

12 Id.,

13See supra n. 7.

14Dugard, The Secession of States and Their Recognition at 38

15 Id. at 39.

16Harris, D.J. (ed) Cases and Materials on International Law (7th ed. 2008) at p. 99.
parties to this case have signed and ratified the Convention. The Montevideo Convention summarizes
what has come to be known as the "declaratory theory" of statehood, which rests upon the assumption
that statehood is created on its own accord when a purported state satisfies the following criteria: (a) a
permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations
with other states.
In the case of East Agnostica, (b) and (c) are likely the most contestable qualifications of statehood.
Rather than a simple question of the location of the borders, East Agnostica's claim of a defined territory
lacks legitimacy because it will be very difficult for it to assert an uncontested claim to the land that it
holds within its own control. This lack of control of the land also harms East Agnostica's claims to have
a proper government, as the general test under international law for who is the legitimate government of
the state is the "effective control" test. 17 A state has effective control of the territory when it is clear that
it is the controlling authority over the land and all matters that occur within that land. 18 Here, the
Agnorev Peoples' Party has a dubious claim to "effective control" of the territory when it was the
Agnostican armed forces and police that were maintaining order within the lands that were supposedly
in the control of the Agnorev Peoples' Party. However, due to the withdrawal of Agnostican forces, a
strong Respondent might be able to build a case for territorial control by the new provisional
government.
Respondent can counter with examples of state practice (an element of custom) that reflect that states
have often recognized new nations within days of their creation. Immediate examples include the swift
recognition of Kosovo by 60 nations within the first month after its declaration of independence and the
almost immediate recognition of the state of Bangladesh by dozens following its 1972 War of
Independence from Pakistan (in which it was aided militarily by India in what is one of the U.N. Charter
era examples of a third-party aided, non-colonial secession movement that was subsequently
legitimized).
3. Evidence of an Act of Aggression
An act of aggression is a use of force which is distinguished by its gravity and severity.19 Applicant
might try to argue that the sending of forces to the Agnostican border constituted an act of aggression,
though this argument is weakened by the fact that the Reverentian troops were barred from entry into
Agnostica, only entered the territory of East Agnostica once they believed it to be part of Reverentia,
and justified their troop movements under the need to prevent spillover violence. A stronger argument

17 Tinoco Claims Arbitration (Great Britainv. Costa Rica) 1 U.N. Rep. Int'l Arb. Awards 369 (1923)
18 Id.
19See supra n. 3, Judge Elaraby Separate Op inion (an act of aggression is an intensified use of force whose gravity and
severity distinguish it from simply being a use of force on its own; an act of aggression is also illegal under
international law as per the UN Charter) 18
20 See §1 for the discussion on Reverentia's troop movements. See also n. 1 for Oppenheim's reference to "sovereignty." The

sovereignty that allows a state to assert control over its military affairs is "internal sovereignty" which is what is
protected by the non-intervention principle. Barring human rights violations (and some would say the violation of
jus cogens norms), internal sovereignty is protected in international law. This same sovereignty allows states the
authority to combat internal rebellions while also giving them the authority to provide for their self-defense.
Respondent might try and argue as well for a self-defense argument as Reverentia did claim that it sought to prevent
spillover violence.
for aggression could be made by alleging that the actual movement of troops into the territory of East
Agnostica constituted an armed attack. Respondent may counter with the fact that the armed forces
moved into East Agnostica only after obtaining the consent of what they considered to be the legitimate
government of the state (the Agnorev Peoples' Party and Tomdis Bien). Consent by a state to an
intervention effectively legalizes that intervention. 2 1 However, this argument is also weakened by the
previously described problems with the argument that the East Agnostican secession movement, post
referendum, created a government with the capacity to issue consent, especially due to the lack of
effective control held by Mr. Bien's purported government.
Respondent may counter that it was responding to the consent of the legitimate authority as vested in the
Agnorev Peoples' Party by the referendum. The policy implications of such a statement, however, are
vulnerable to critique. Judges may wish to ask about the slippery slope implications of vesting such
authority in a secession movement that had existed for as short a period of time as the Agnorevs had.
The implications of finding such authority within the Agnorev assembly could very well lead to a drastic
undermining of the laws of state sovereignty, with a marked effect on numerous states worldwide who
all are currently dealing with their own separatist movements. In effect, such a policy could create an
"open season" attitude towards assisting and recognizing separatist movements, returning the world to a
situation such as in the Cold War where the Soviet Union and the United States continually supported
and recognized entities as states in spite of their dubious control or lack of popular support.

4. Responsibility to Protect
We would like judges to be aware that some Respondents are choosing to argue the theory of
Responsibility to Protect as a justification for the legality of Reverentia's actions. Responsibility to
Protect expands the doctrine of humanitarian intervention imposing a positive obligation on states to
intervene in the event of mass atrocities (defined as genocide, crimes against humanity, war crimes, and
ethnic cleansing). R2Pis controversial as it effectively declares that a state's sovereignty is not an 24
absolute right - a statement that flies in the face of the far more concrete non-intervention doctrine.
Judges should press competitors to provide justifications for this theory that lie outside of Article 38.1(d)
sources. Judges should also impress upon teams the need to provide state practice of events where states
actually have intervened specifically under this doctrine. Judges should also strongly critique the fact
that nothing in the Compromis remotely arises to the level of a mass atrocity and they should ask the
Respondents to provide examples of where facts in the Compromis fit any one of the four crimes listed
earlier. If a team decides to follow this route, judges are more than within their power to ask students
what the definitions of these crimes are (as the first three are explicitly defined in the Rome Statute
while the United Nations has defined the last) and whether the facts of the Compromis can, in any way,

21 Articles of the Responsbility of States for Wrnful Acts (hereafter ARSIWA) art. 20. ("[V]alid consent by a State to the
commission of a given act by another State precludes the wrongfulness of that act in relation to that State to the
extent that the act remains within the limits of that consent."
22 James Crawford The Creation of States in International Law (2d ed. 2006) at 403-408.
23 See supra n. 14.
24 2005 World Summit Outcome Report. UNGA Resolution 60/1. A!RES/60/1
(24
October 2005).
be considered indicative of these crimes. The short answer is - no. Teams might try and argue that
crimes against humanity occurred with the Marthite Control Act - as evidence of widespread and
systematic cultural, ethnic, or religious persecution. This is a tough argument as Respondent would
need to prove that Agnostica purposefully discriminated against the Agnorevs (ethnically, culturally, or
religiously) in a widespread and systematic fashion. The fact that only 18 people were prosecuted under
the Marthite Control Act and that, of that 18, only 12 received guilty verdicts and prison sentences
weighs against this characterization as does the facially neutral language of the act.
B. Question Presented 2: Secession and the Status of Seceded Territory
Agnostica's Praiyer for Relief Re\verentia's Praiyer for Relief
Agnostica is still the sovereign authority over the Reverentia's integration with East Agnostica
territory of East Agnostica, as the secession was was consistent with international law and in any
illegal and the territory should be returned to event the territory should not be returned back to
Agnostica. Agnostica in direct opposition to the express will
of the Agnorev people.

At the outset, judges should be aware that the law of secession is by no means as cut and dry as either
side may try to present it. In fact, secession is a nuanced field of law characterized by policy arguments
that can cut either for or against secession movements based on the actual facts of the situation. 26 In the
Quebec case, the Canadian Supreme Court surveyed international law and declared that international
law was neutral on the question of secession. 27 This means that while the right28
to secede is not expressly
prohibited, it also does not rise to the level of being an express entitlement.
Additionally, while there is an element of the law of self-determination to the question of secession, it is
not the only concern. Though the ILC has held that self-determination has risen to the level of a jus
cogens obligation and the ICJ has confirmed it as an erga omnes right, the modern interpretation of self-
determination differs greatly from the image of Wilsonian democracy. 29 Though the early 1900's saw
growing international support for the right of all people to self-determination, states subsequently began
limiting the definition of what could occur under this principle, limiting its impact. 30 Judges should,
thus, be wary when Respondents err too heavily on the side of arguing self-determination for the
Agnorev people. Self-determination is not an absolute entitlement.
Similarly, Applicants might err heavily on the side of arguing for the inviolability of the territorial
integrity of a state. Though it is a commonly acknowledged fact that the principle of territorial integrity

25 Rome Statute of the ICC, Art 7, A/CONF.183/9 (1 July 2002 entered into force).
26 Supra n. 22 at 383.
27 The Quebec Case LReference Re Secession of Quebec), 2.SCR. 217 1998) Supreme Court of Canada) at 134.
28 Id. See also Antonello Tancredi, A Normative 'Due Process' in the Creation of States through Secession," in
Secession: International Law Perspectives (2006) ed. Marcelo Kohen at 189-91.
29 Supra n. 22 at 384.
30 Id. at 380.
is customary international law, it does not mean that all borders are inviolable at all times for any reason.
The discussion on this issue will have to be somewhere between these two absolutes and the best teams
will recognize that QP2 can only be properly discussed by addressing all of the elements of law that
constitute the law of secession.
In short, the act of secession has been responsible for the creation of a large portion of the current states
in the world, be it through decolonization or rebellion. Secession movements provided for a large part of
the expansion of the United Nations' member states' from a mere 50 member states in 1945 to the
current tally of 192.
1. Are the Agnorevs a "People"?
There is little legal consensus on what is the definition of a "people". Common definitions include the
entire population of a territorial unit; a "native" group on the land; a group bound by ethnicity and
language; and a disenfranchised portion of a greater population. 3 1 Students will choose their definitions
and attempt to define the status of the Agnorev peoples and many of these definitions will make
references to having a tie to the land in some way. Respondents have a difficult task proving the
"peoples" status of the Agnorevs as they are explicitly referred to as ethnic Reverentians in this
Compromis on multiple occasions. This fact, alone, is strong evidence that the Agnorevs constitute an
ethnic minority within Agnostica rather than a separate peoples. Reverentia's repeated entreaties for the
return of the Agnorevs in the mid-2Oth century also speak to their common ethnic bond. Respondents
will have to couch their arguments for Agnorev status as a separate peoples in the history of the
Agnorevs within Agnostica, but their arguments will be shaky as there is little to suggest within this
Compromis of the formation of a new peoples - rather, numerous facts exist to assert the similarity
between the Agnorevs and the Reverentians, reaffirming the Agnorevs status as an ethnic minority.
2. Internal Self Determination in the Context of East Agnostica
Both parties to the case have ratified the ICCPR, which states that "all peoples have the right to self-
determination" through which they can exercise their economic, social, and cultural rights. However,
when determining an issue of self-determination,
32 it is necessary to determine which kind to apply -
internal or external self-determination. In General Assembly Resolution 2625 (also known as the
Declaration on Principles of International Law Concerning Friendly Relations or Declaration on
Friendly Relations (1970)) the General Assembly reaffirmed self-determination as a right but added the
caveat that nothing in the resolution would be construed as encouraging or authorizing actions that could
dismember a states' territorial integrity or political unity. 33 This resolution is a precursor to the concept
of "internal self-determination" which stands for the idea that a people can achieve their various political
and social rights through the internal political mechanisms of a state. 34 Recent examples of such internal

31 See supra n.14 at 88-98.

32 See supra n. 27.

33 Declaration on Principles of International Law concernin2 Friendly Relations and Co-operation among States

in accordance with the Charter of the United Nations, UNGA Resolution 2625 (XXV). AIRES/2625 (XXV) (24
October 19701.
34 R. Higgins, Problems and Process. International Law and How We Use It (1994) at 119-20.
self-determination include the devolution of powers to Scotland and Ukraine's provision of a unique
legislature (vested with its own powers) in Crimea.
Here, Agnostica will claim that it had satisfied its obligation to provide internal self-determination to the
Agnorev population through the existence of a constitutionally guaranteed provincial assembly with
devolved powers. Furthermore, Agnostica can assert that it also constitutionally guaranteed a
mechanism by which East Agnostica could have achieved legal independence through a vote for
dissolution in the Agnostican Parliament. Applicant will claim that independence is not a guaranteed
right of peoples but that it offered a means to achieve it anyway. Applicant will also likely claim that
external self-determination, also known as the achievement of full independence or secession, is
allowable only when a people are repressed to the extent that the only way to guarantee their rights of
internal self-determination (e.g. political participation, equal rights etc.) is through the drastic means of
secession. Agnostica will argue that by providing a provincial legislature and Constitutional avenues for
external self-determination that it had satisfied every obligation it had under international law to satisfy
the Agnorevs' desire for self-determination.
Respondent will counter, however, by questioning the legal content of the provided internal self-
determination, pointing to the need for the Agnorevs to achieve a 3/4 majority in the parliament despite
only possessing 1/3 of the seats. Moreover, Respondent might argue that the constitutional framework
allowed East Agnostica full control over legislation related to its cultural affairs, but that the Agnostican
Parliament interfered with this constitutional right when it passed the Marthite Control Act which
severely impeded Agnorev access to their traditional medicine which was vital to their culture and
beliefs.
3. External Self-Determination in the Context of East Agnostica
Some respondents will argue that East Agnostica has a right to external self-determination, resting this
claim on the fact that secession is not strictly prohibited by international law in cases where internal self-
determination has failed. 35 They will contend that the Agnorev people were unable to properly exercise
their rights within the Agnostican Constitutional framework. Respondent will likely note that the
proportional representation within the Agnostican Parliament allowed East Agnostica 1/3 of the
allowable seats making them subject to a possible tyranny of the majority that would make any possible
vote for dissolution an impossibility. Furthermore, Tomuschat argues that a people are "entitled to
decide what way to go" and "in each and every case all the possible options are open to them,"
therefore, "they cannot be prevented from choosing independent statehood." Using the referendum as
evidence of the will of the people and the decision of which way they "decided to go," Respondent can
argue that the Agnorevs had a right to independence. 36 Furthermore, by alleging that the afforded
political rights within Agnostica were meaningless, Respondent will assert that the Agnorev people had
a right to external self-determination and the extreme resort of secession due to the failure of any
provided internal state mechanisms meant to ensure internal self-determination via the means of political
participation and representative bodies.

35 See supra n. 27.

36 See Christian Tomuschat, Self Determination in a Post-Colonial World, in MODERN LAW OF SELF DETERMINATION
(Tomuschat ed. 1993) at 12. (Tomuschat is a former member of the International Law Commission).
 4. Remedial Secession
Respondent can also argue that the East Agnosticans were entitled to the protections afforded under
theory of remedial secession. Remedial secession is a theory that legitimizes secession in the event a
people is 1) denied the right of internal self-determination, 2) oppressed, and 3) facing fundamental
human rights violations. Classic jurists such as Grotius and Vattel planted the seeds for this theory,
which was further developed by language found in the American Declaration of Independence. 37 The
modern law of remedial secession has its foundation in the Declaration on Friendly Relations (1970),
which contemplates secession in the event that a territory's government denies equal rights and self-
determination, thus, making itself unrepresentative. 38 Publicists have further elucidated that for remedial
secession, one needs to have a peoples within a distinct territory wherein they are the majority
population who is denied internal self-determination by means of not being allowed a meaningful voice
in government. Furthermore, the people must have been subjected to widespread and gross violations of
their fundamental human rights and have exhausted all reasonable opportunities
39
to secure respect for
their human rights through the mechanisms of internal self-determination.

Respondent will argue for this theory by coupling prior arguments regarding the lack of meaningful
internal self-determination with allegations that the Marthite Control Act, subsequent armed forces
mobilization within East Agnostica, and implementation of harsh sentencing which disproportionately
impacted Agnorev citizenry as evidence that the Agnorevs' human rights were under threat.
A key aspect to this argument will be alleging that the MCA disparately impacted the Agnorevs' human
right to culture (as guaranteed under the ICESCR to which both states are parties) and that it was
discriminatory despite its facial neutrality as a licensing scheme. Strong Respondents will have the ready
citation to the European Court of Human Rights' D.H. & Others v. Czech Republic case that used
disparate impact theory to find a facially neutral law a violation of human rights. Strong Applicants
will counter that the court specifically held in that case that the facts were shaped due to the
longstanding, overt, and systematic racism experienced by the Roma - a claim that cannot be properly
applied to the Agnorevs in this situation. Applicants can further distinguish the case as it here we simply
have a licensing scheme whereas in DH, young Roma children who spoke Romani were forced into
examinations held solely Czech, resulting in Roma children being placed disproportionately into
remedial schools. There is no evidence in the Compromis of any denials of Marthite licenses nor is there
evidence that all of those prosecuted were Agnorev. Further, of 18 prosecutions, 1/3 resulted in
acquittals.

37 "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever
any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and
to institute new Government[.] [...][W]hen a long train of abuses and usurpations.. evinces a design to reduce [a
peoples] under absolute Despotism, it is their right, it is their duty, to throw off such Government[.]" THE
DECLARATION OF INDEPENDENCE (1776).
38 See supra n. 30.

39 See supra n. 14 at 117.

40 D.H. & Others v.Czech Republic No 57235/00 E.Ct.H.R. (Grand Chamber)(2007)
Further, in the Quebec case, the Supreme Court of Canada found evidence to support the idea that
people who are deprived of meaningful political participation can be entitled, as a last resort, to
secession. 41 Applicant will respond, however, that the theory of remedial secession is not customary
international law, as it is contested to the extent that it cannot be said to have achieved either widespread
state practice or opinio juris. A good Applicant team might also point out that in the same case, the
Supreme Court of Canada acknowledged that it was unclear whether the theory of remedial secession
"actually reflect[ed] an established international law standard., 42 Applicant might go on to further quote
the same case where the Court declared:
"In summary, the international law right to self-determination only generates, at best, a right to external
self-determination in situations of former colonies; where a people is oppressed, as for example under
foreign military occupation[. ]"43
Respondent can counter, however, by pointing out that the Court also allowed for secession when "a
definable group is denied meaningful access to government to pursue their political, economic, social
and cultural development." 44 However, Applicant will argue that in that case the Quebecois secession
movement was not given legal validity as they were fully represented in the federal Government and
parliament of Canada and were not victims of their physical existence or integrity. In this instance,
Applicant can draw favorable comparisons between the Quebecois minority and the Agnorev minority
as two minority groups that have been afforded the constitutional rights which qualify as internal self-
determination. Respondent might then argue in response that a primary difference between the Quebec
Secession movement and the Agnorev secession movement was the fact that an independence
referendum failed in Quebec while a similar referendum received 73% of the votes in favour in this case.
5. Secession -Legality v. Effectiveness
Teams will often try and find a justification for the secession (as the ones listed above) as a way of
asserting its legality. Good teams will notice that the arguments for Respondent on these earlier planks
are, indeed, weak. That is by design as the Compromis was not meant to evoke a humanitarian crisis and
the general lack of intensity to the events (notwithstanding the overwrought Sugdy situation) speaks to
that. Furthermore, denying the existence of internal self-determination is very difficult under these facts.
Skilled Respondents, however, will note that the law on secession is neutral and that the question that
the court should answer is whether or not the secession itself was effective. 45 They will claim that under
international law there is no affirmative right to secede nor is there an explicit prohibition, thus, the only
question at hand is whether the secession was effective or whether it is ongoing. Respondents will argue
that the secession itself is a fait accompli using the referendum and withdrawal of Agnostican troops as
clear evidence that the secession is over in fact (one can almost think of this is as a res ipsa line of logic,
i.e., "look, it's obvious that this has happened."). Applicant will assert that it has not once withdrawn a
legal claim on the land itself. However, as an issue of fact, the expression of popular will in a free and

41 See supra n. 27 at para 134.

42 Id. at para 135.

43 Supra n. 27 at para 138.

44 Id.

45 See generally supra n. 27.

fair referendum coupled with the withdrawal of Agnostican forces might weigh the argument concerning
the efficacy of this secession in Respondent's favour. Respondent's arguing this line should be
challenged, however, on when exactly secession is effective. This is a gray area in the law and skilled
Respondents will build on the jurisprudence of the ICJ and arbitral commissions along with treaty law to
develop their own standards for when secessions are effective. Some teams might not have reached this
level of sophistication in their arguments but this is what will separate excellent teams from the merely
very good. Judges can use this as a means to ask Respondent's exactly what standard they would like to
apply to determine whether secession is legal. Competitors can draw from a wide array of sources to
formulate arguments. Building on Badinter Commission (arbitrating the end of SFRY), the Venice
Commission (in response to the Russia-Ukraine dispute), and state practice as exemplified by the
secession of Montenegro, a canny Respondent might be able to argue for the existence of a new rule of
Federal Secession - or the right for federal entities to secede. As always, judges are encouraged to do
their own research into these issues and it is precisely within this gray area that this research could be
put to great effect. Discussions can verge into whether or not this line of reasoning is simply a gloss on
what is mere power politics (and not law) or whether it reflects a new legal reality. Any assertions made
here, however, must be supported and cannot simply be statements of opinion by the agents.
6. Dissolution
Some teams might try and argue that the state of Agnostica was in a process of dissolution prior to the
events in question and that the secession of this one federal unit is legal under the framework developed
by the Badinter Commission (the commission who evaluated the legality of the break-up of the Socialist
Federal Republic of Yugoslavia). Establishing dissolution requires Respondent to prove that in the
absence of a federal government which represented the full population of the former Agnostica, there
was no government that could claim the authority to prevent the break-up of its constituent pieces. 46 In
the case of the SFRY, Badinter determine that the evidence of a prior constitutional crisis over the
choice of the President along with widespread ethnic cleansing gave context to the argument that the
former Yugoslavia, effectively, no longer existed despite Serbian claims that they effectively continued
the SFRY's legal personality. 47 Badinter further examined the facts of the situation finding that most
constituent Republics (comprising a large majority of the former Yugoslav population) had, at some
point, declared independence or held a plebiscite reflecting popular will while also holding some degree
of effective control over their territory. 4 8 Thus, the Commission found that the SFRY had dissolved
(ceased to be) and that the new Republics had legal standing.
However, representatives of Serbia & Montenegro tried arguing that their state was a continuation of the
SFRY in an attempt to dissuade the court of the argument that the SFRY had dissolved. 49 Applicant has
an easier task here in establishing that Agnostica had not dissolved as the Agnostican state is not only
still functioning, it is also an effective government that has governed without interruption, in contrast to
the SFRY. They are not making a tenuous claim to be a successor state but rather are the original
government of Agnostica that has not ceased its operations or efficacy as a state. Moreover, Applicant

46 See Crawford supra n. 22 at 398

47
Id. at 401.
48 Id.

49 Id. at 398-401
can point that the nation was far from being in the throes of a constitutional crisis as they will claim the
Constitution was fully obeyed at all times with no derogations from its procedure. Applicant can counter
that it was the East Agnosticans who violated the Constitution rather than the Agnostican government
itself with their attempts to extra-Constitutionally leave their federation. Respondent can retort that the
Marthite Control Act directly overrode East Agnostica's guaranteed rights and that their secession was
bolstered by the referendum, as in the former Yugoslav republics. Furthermore, Respondent can argue
that they substantially controlled their territory, satisfying one of Badinter's key concerns.
7. The Status of the Territory of East Agnostica
Even if Reverentia's annexation of East Agnostica violated international law, QP2 presents Applicant
with the challenge of convincing the Court to order Reverentia to quit its territory and allow Agnostica
to retake control. This question is one of the law of state responsibility. The responsibility of a state for
50
an internationally wrongful act contains two duties: (1) cessation and non-repetition and (2) reparation.
In its submission, Applicant is asking the Court either to order specifically the cessation and the non-
repetition of the unlawful annexation or, if the Reverentia's violation is non-continuing, to order the
retrocession of East Agnostica as restitution.
Applicant's argument will rely heavily on the law of state responsibility. ILC Article 30 reflects the
customary obligation to cease a continuing internationally wrongful act. 5 1 As the tribunal in the Rainbow
Warrior arbitration noted, for the obligation to cease to arise, it is necessary that "the wrongful act has a
continuing character and that the violated rule is still in force." 52 Applicant may argue that Reverentia's
continued presence in East Agnostica constitutes a continuing violation of Agnostica's territorial
sovereignty that must cease.
Even if Reverentia's violation is not continuing, Agnostica should ask for reparation in the form of
restitution. As the PCIJ held in Factory at Chorz6w, the duty to make reparations is a duty "as far as
possible, wipe out the consequences of the illegal act and reestablish the situation which would, in all
probability, have existed if that act had not been committed." 53 ILC Article 34 expands on this, noting
that "[flull reparation for the injury caused by the internationally wrongful act shall take the form of
restitution, compensation and satisfaction, either singly or in combination . . .54 Among these,
restitution in kind has long been held to be preferred. 55 Agnostica should argue that this requires
Reverentia to "return" East Agnostica, as though it never purported to secede.
Respondent's argument will rely heavily on sources outside the law of state responsibility, particularly
the right to self-determination. As noted above, the ILC has recognized the right of self-determination as
a jus cogens norm.56 As defined by the international community in VCLT art. 53, a jus cogens norm is

50 ARSIWA 30-31; Shaw, supra note 9, at 800.

51 ARSIWA 30.
52
Rainbow Warrior,XX UNRIAA 215 13; see also ARSIWA 31.
53Factory at Chorzow (merits) P.C.I.J. ser. A, no. 17, at 47.

54 ARSIWA 34.

55Factorv at Chorzow (merits) P.C.IJ. ser. A, no. 17, at 47.

56 ILC, Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law,
U.N.Doc. A/CN.4/L.702.
"accepted and recognized by the international community of States as a whole as [one] from which no
derogation is permitted. ,57 Reverentia's strongest argument here is that to order the cessation of the
annexation or the restitution of the territory would violate the expressed will of the population of that
territory, thus derogating from their jus cogens right to self-determination. Moreover, Reverentia can
point to the referendum itself as evidence of this expressed political will. Respondent will likely allude
to the high turnout, fair vote without irregularities, and large victory (73% in favour) as evidence of an
undeniable political will to no longer be part of Agnostica. In a conflict with the law of state
responsibility, Respondent will contend that the jus cogens right to self-determination prevails. Thus,
Respondent should argue, Agnostica is not entitled to the remedy it seeks.
C. Question Presented 3: The Legality of the Termination of a Treaty

Applliat's Prayer for Relief Respondcent's Prayer for Relief

The Marthite Convention ceased to be in effect as of 2 The Marthite Convention was in effect until 1
April 2012 and, in any event, Agnostica did not March 2013, and Agnostica breached that
breach the Convention. Convention.
1. Shared Issues in Questions Presented 3 and 4
Questions Presented 3 and 4 present several shared issues. The following analysis applies equally to
both. Some of these issues present both parties with the challenge of maintaining consistent positions
between QPs 3 and 4 as the determination of one can affect arguments in the other. Judges are
encouraged to challenge participants should such inconsistencies in their positions arise.
a) Applicability of the Vienna Convention on the Law of Treaties
QPs 3 and 4 relate to the interpretation and application of the Marthite Convention, a treaty. Thus, both
raise the issue whether rules codified in the Vienna Convention on the Law of Treaties (VCLT) apply to
the Marthite Convention.
The VCLT is the result of a project to codify the law of treaties undertaken by the International Law
59
Commission (ILC) in 1949.58 The ILC adopted a set of draft articles on the Law of Treaties in 1966.
Through the 1968-69 UN Conference on the Law of Treaties, these draft articles evolved into the
VCLT. Adopted in 1969, the VCLT entered into force on 27 January 1980.61
Under VCLT art. 4, the VCLT as a treaty does not apply retroactively to treaties concluded before its
entry into force. 62 Because the Marthite Convention was signed and entered into force in 1938, the

57
VCLT art. 53.
58 See Report of the Internationa Law Commission on the work of its firs session, reprinted in [1949] 1 Y'book Int'l L.
Comm'n 277; Anthony Aust, Modern Treaty Law and Practice 5 (3d ed. 2013).
59 AUST, supra, at 5. These draft articles, along with the ILC commentaries, are included in the first batch of basic materials.

60 Id.
61 Id.

62
VCLT art 4.
VCLT as such does not apply to63it. Instead, only rules in the VCLT that codify or reflect rules of
customary international law apply.
Because the VCLT resulted from a codification project, many of its rules are consistent with otherwise
applicable rules of customary international law. Indeed, the VCLT text was adopted by all participating
states except France, which objected solely in protest to the recognition in the text of the concept of jus
cogens. This nearly unanimous approval of the VCLT, coupled with its stated aim of codifying
customary international law of treaties may help parties to claim that the VCLT as a whole is custom.
The VCLT is similarly often treated as reflecting custom in practice. As Aust notes, "[w]hen law of
treaties questions arise during negotiations, whether for a new treaty or about one concluded before the
entry into force of the Convention, the rules set forth in the Convention are invariably relied upon, even
when the states are not parties to it.'64 The ICJ has generally taken a similar approach. 65 When this is

true, strong arguments will invoke the relevant ICJ judgment.

b) The GeneralRule of Treaty Interpretation
One such rule codified in the VCLT is the rule for treaty interpretation in arts. 31-32. In Libya v. Chad
and Kasikili/Sedudu Island, the ICJ expressed its view that these articles reflect customary international
law.66 Article 31 (1) provides:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its object and
purpose. 67
Article 31(2) clarifies that "context" includes the text of the treaty, its preambles and annexes, and
agreements made by the parties accepted as relevant to the treaty. Other factors to be considered
include:
* Subsequent agreements, subsequent practice of the parties, and relevant other rules of
69
international law. Art. 31 (3).
* Special meanings of terms intended by the parties. Art. 31 (4).70

63AUST, supra note 59, at 8 (citing a note by M. Shaw on the application of the 1969 VLCT to a treaty of 1890; see also
AUST at 1 Ifor a discussion of the ICJ's application of VCLT articles considered customary international law to a
treaty whose conclusion predated both parties' entry into force of the VCLT in Gabcikovo-Nagymaros Project.
64 AUST, supra note 59, at 10.

65 Id.
66 Territorial Dispute (Libya/Chad), 1994 LC 6 41; Oil Platforms (Iran v. U.S., preliminary objections 1996 LC.. 812
23; Kasikili/Sedudu Island (Botsw. v. Namib.) 1999 IC.J. 1045 118; see also AUST, supra, at 207.
67 VCLT art. 31(1) (emphasis added).

68 See VCLT art. 31(2).

69 See VCLT art. 31(3).
70 See VCLT art. 31(4).
 * Supplementary means of interpretation (e.g., travauxprdparatoires)to confirm the interpretation
reached through Article 31 or if the Article 31 method results in an ambiguous, obscure, or
manifestly absurd or unreasonable interpretation. Art. 32.71
By highlighting text, context, and object and purpose as the three primary factors considered in treaty
interpretation, international law anticipates a balancing between textual and teleological interpretation of
treaties. 72 This allows parties considerable flexibility in crafting treaty-interpretation arguments.
c) IntertemporalLaw and the Law of Treaties
One question teams have faced is which law of treaties to apply to the Marthite Convention, the law of
1938, when the Convention was concluded, or the present law contemporaneous with the events in the
Compromis. Waldock addressed this in his third reports a special rapporteur on the law of treaties,
proposing an article providing that treaties are interpreted according to the law in force at the time of
conclusion, but applied according the law in force when the treaty is applied.7 3 74Rosenne confirms that
this statement of the law was not substantially questioned at the ILC or by States.
d) Termination or Suspension of a Treaty as a Consequence of a Material
Breach
A shared issue likely to provoke controversy between the parties is the nature of the rule allowing the
termination or suspension of a treaty in response to a material breach. Here, the question of the extent to
which the VCLT codifies customary international law is crucial.
The relevant VCLT provision, art. 60(1) provides:
A material breach of a bilateral treaty by one of the parties entitles the other to invoke
the breach as a ground for terminating the treaty or suspending its operation in whole or
75
in part.
In Gabcikovo-Nagymaros Project, the Court expressed its view that VCLT Article 60 was "in many
respects" a codification of existing customary international law. 76 This is consistent with 77
the application
of the doctrine of termination in response to material breach in cases predating the VCLT.
(1) Definition of Material Breach
The first element required by the rule is the existence of a material breach. VCLT Article 60(3) defines
"material breach" as either:

71 See VCLT art. 32.

72 AUST, supra note 59, at 209.
73 Third report of the law of treaties, by Sir Humphrey Waldock, Special Rapporteur, at 8-9.

74 SHABTAI ROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES 1945-1986, at 76 (1989).

75 VCLT art. 60(1).

76 GabcikovoNagymaros Project (Hungary/Slovakia), 1997 I.;J 3_146 see also AUST, supra, at 258.
77 See, e.g., Diversion of Water from Meuse (Neth. v. Bel .), 1937 P.C.I.J. (ser. A/B) No. 70, at 50 (June 28) (Anzilotti, J.,
dissenting); Tacna-Arica Question (Chile v. Peru), 2 R.I.A.A. 921, 943-44 (1922). Anzilotti, however, characterizes
the principle as a general principle of law rather than a rule of customary international law. Meuse, at 50.
 (a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation
78
of a provision essential to the accomplishment of the object or purpose
of the treaty.
This requirement as a part of customary international law was invoked by the tribunal in Tacna-Arica
Question, which held that, in order to justify the termination of a treaty, a breach must "operate to
frustrate the purpose of the agreement." 79 The Court echoed this position in Gabtikovo-Nagymaros
Project, holding that "only a material8 0breach of the treaty itself.., entitles the other party to rely on it as
a ground for terminating that treaty.",
(2) Procedural Conditions on Terminating or Suspending a Treaty
The second element necessary to justify the termination or suspension of a treaty is the fulfilment of
procedural preconditions. VCLT arts. 65-68 establish procedural conditions on the exercise of the right
of termination or suspension for the sake of limiting abuse of that right. 81 Article 65 requires parties
seeking to suspend operation of a treaty to notify the other parties to that treaty and allow, except in
special cases, those states three months to make an objection to suspension. 82 Additionally, objections
must be settled using peaceful means of dispute resolution. 83 Under Article 67(1), notification must be
made in writing. 84 Article 67(2) requires the termination or suspension to be made by means of a formal
85
instrument.
But the VCLT is not directly applicable to the present dispute. 86 Thus, if these articles do not reflect
customary international law, they are not applicable and showing that a termination or suspension
occurred becomes considerably easier. This argument has weight as the state practice on the issue of
procedure is far from consistent. According to both Aust and Judge Villiger, no case has been recorded
where these procedural requirements have been followed through. 87 Without such practice, custom is
difficult to establish. Thus, a party seeking to avoid the procedural requirements might argue that, while
required under the VCLT, they are not required by custom. However, several of these provisions found
wide approval at the UN Conference on the Law of Treaties. For example, the text of art. 65 was
unanimously approved by vote of 106-0 (with two abstentions). 88 The leap from the travaux vote to

78 VCLT art. 60(3).

79 Tacna-Arica Question 2 R.I.A.A. at 944.

80 Gab~ikovo-Nagymaros Project, 1997 I.C.J. 3 106.

81 VCLT arts. 65-68; see also Mohammed M. Gomaa, Suspension or Termination of Treaties on Grounds of Breach 157
(1996).
82
VCLT art. 65.
83 Id.
84 VCLT art. 67(1).
85 VCLT art. 67(2).

86 See supra n. 59 and n. 60.

87 See Aust supra n. 59, at 260 and Mark E. Villiger Commentary on the Vienna Convention on the Law of Treaties (2009) at
53.
88 Records of the 25 rh Plenary Meeting. UN Conference on the Law of Treaties. A/CONF.39/SR.25 (1969) p. 136.
custom, however, is a dangerous one to make without state practice, which, as previously stated, is by no
means overwhelmingly consistent.
2. FundamentalChange of Circumstances
Turning to the substance of QP3, one argument Applicant may raise to justify its termination of the
treaty is a fundamental change of circumstances (the so-called rebus sic stantibus doctrine). Originating
in English contract law,89 the principle has been acknowledged to apply to treaties. But a contentious
debate persists on the conditions under which a state can invoke this doctrine. Past abuses of the doctrine
between the First and Second World Wars led to a restrictive rendering of the doctrine in Article 62 of
the VCLT. 9° Scholars suggested that the concept was applicable only to treaties with unlimited duration
and no termination clause. However, the ILC did not choose to endorse this limitation. 91 In the Icelandic
Fisheries Jurisdiction
92
Case, the ICJ found that Article 62 had risen to the level of customary
international law.
The elements of Article 62 are as follows:
i) The change is of circumstances existing at the conclusion of the treaty;
ii) The change is 'fundamental';
iii) The change was not foreseen by parties (i.e. when they concluded the treaty);
iv) The existence of the circumstances constituted an 'essential basis of the consent to the
parties to be bound by the treaty'; and
v) The effect of the change was to 'radically transform the extent of the obligations still to
be performed under the treaty .93
This principle has been invoked by many state parties and it has also been recognized by treaties.
However, to date, no international
94
tribunal has applied the concept; similarly, no international tribunal
has denied its existence.
The major issues in the present case are (a) whether the change was fundamental/affected an essential
basis of consent and (b) whether the change radically transforms the extent of the obligations to be
performed under the treaty.
a) Fundamental change/essentialbasis
Crucial to whether the change in circumstances has been fundamental or impacted an essential basis for
consent is the role of Marthite's lack of previous commercial value in the formation of the Convention.
For a fundamental change of circumstances to even be considered a means of obviating a treaty, the
fundamental change must have occurred within an "essential basis" to the formation of the original

8 Id. at 262.
90 Id.

91 Id. at 263.

92 Fisheries Jurisdiction Case (Merits) (UK v. Iceland) 1974 LC.J. 55 at para 34.
93
VCLT art. 62
94 Aust, supra note 59, at 263.
treaty.95 In Gabtikovo-Nagymaros Project,the ICJ rejected the argument that profound political changes
could constitute a fundamental change of circumstances. 96 The Court reasoned that the underlying
political background was not an integral part of the original formation of the treaty and was not so
closely linked to the formation of the treaty that a change in political
9
circumstances could not be
considered a fundamental change in the context of that specific treaty. 7
Here, however, applicant can argue that the original treaty was created under the presumption that
Marthite held no significant commercial value outside of its traditional uses. Applicant can point to the
Convention itself, which specifically identifies this lack of commercial value as one of the underlying
rationales for agreeing to its articles. It will argue that the ILSA discovery of the inherent value of
Marthite would constitute a fundamental change in a concept that was an essential basis to the formation
of the original treaty in 1938.
b) Extent of the obligationsto be performed
In the present case, the change in circumstances arguably does not change the extent of the remaining
obligations. Respondent will likely argue that, in real terms, the change in circumstances has no bearing
on the amount of Marthite to be mined or sold and on Applicant's obligation to allow such activity.
Applicant will likely argue that the extent of its obligation to sell Marthite to the RMT has vastly
changed in nominal terms.
3. Termination as a Consequence of MaterialBreach
Applicant will likely also argue that its termination of the treaty was justified by Respondent's material
breach. In order to do so, Applicant must first show there was a material breach by Respondent. In the
present case, this is complicated by the fact that RMT's actions are likely not attributable to Respondent.
Second, Applicant must show that any applicable procedural conditions were met.
a) MaterialBreach by Respondent
First, Applicant must show that Respondent materially breached the Marthite Convention. Applicant
will argue that Respondent materially breached the Marthite Convention when it began selling to
pharmaceutical companies at a much higher price than the Convention's fixed price. According to the
Convention, RMT could sell Marthite outside the traditional market only when the amount of mined
Marthite exceeded traditional demand by 125%. However, the Clarification 10 establishes that the
greatest variance between the amount of Marthite mined and traditional demand had been, at most, 5%.
Thus, when RMT began selling 75% of all mined Marthite to pharmaceutical companies, it was likely
doing so in breach of the Convention barring a massive increase in production. Respondent may choose
to admit that this was a breach but not of a material nature. This argument may prove difficult, as a
breach is material if it violates a provision "essential to the accomplishment of the object and purpose of
the treaty." 98 The Marthite Convention's object and purpose was to secure a supply of Marthite for
traditional users located within Applicant and Respondent. The sale of 75% of the available Marthite

95See supra n. 58.

96 Gabikovo-Nagymaros Project, 1997 JCJ 3 104.
97 Id.

98 Aust, supra note 59, at 260.

reserves to non-traditional users would likely constitute a breach that undermined the purpose of the
treaty. Furthermore, the only entity who would be able to provide the facts rebutting that a sale of 75%
did not constitute a breach of the Convention would be Reverentia. As those facts are not present within
this Compromis, Judges should note to Reverentia that under the Corfu Channel burden shifting test that
they have the burden to provide these facts. As the facts are not provided, a negative inference may be
made against Reverentia, further solidifying the fact that they likely breached the Convention.
b) Attribution of RMT's Actions to Respondent
Though Respondent may have difficulty rebutting allegations of a material breach, it may have a defense
under the law of state responsibility because RMT is a state-owned corporation. Under the law of state
responsibility, the "mere fact that a corporation is owned, partially or even entirely, by a state does not
automatically permit the piercing of the corporate veil and the attribution of the conduct of the
corporation to the state, unless it is exercising elements of governmental authority[.]" 99 In the Barcelona
Traction case, the ICJ recognized the separateness of corporate bodies at national levels, except for
special cases where the corporate veil is a "mere device or vehicle for fraud." 1° This concept was
further refined by the US-Iran Claims Tribunal to a basic presumption that, under international law, 10 1
the
acts of a state-owned corporation are not, merely by virtue of shareholding, attributable to the state.

Respondent can argue that while RMT failed its obligations, this rule creates a presumption that its
actions are not attributable to Respondent. Respondent can point to President Nuvallus' declaration that
he obtained information regarding Marthite stocks from RMT, as evidence of a separation between the
management of the corporation and the Reverentian government. Applicant will counter with the fact
that it was President Nuvallus who ordered the removal of software and engineers by RMT from the
facilities. The Compromis is clear that this action was taken upon Nuvallus' direct order. However,
Respondent can also argue that such a command was well within his foreign policy powers as the head
of government and that nowhere in the facts is there evidence that RMT was run as an empty shell or a
vehicle by government officials. 102 Applicant can further counter by referring to Convention Article 4(a)
that clearly states that "Reverentia undertakes with RMT" to refer to Respondent's undertakings and
obligations rather than RMT. Specifically, Applicant can argue that Respondent materially breached the
treaty by breaching its undertaking that RMT will abide by the distribution restrictions under the
Marthite Convention.
c) ProceduralPreconditionsto Terminate the Marthite Convention
If the VCLT rules noted above apply, Applicant did not validly exercise a right of suspension. Applicant
did not wait the requisite 90 days between notification of intent to terminate the Convention and
purporting to terminate the Convention. Respondent can also argue that Applicant did not attempt to
negotiate as required by VCLT art. 65(3) as there is no evidence of such negotiations.

99 James Crawford, State Responsibility: The General Part (2013) at 162.

100 Barcelona 7 action, & Power ompan Limited Be1 ium v. Spain Second Phase 1970 I. 3 39.
101 See e.g. Schering Corporation v. Iran (1984) 5 Iran-US CTR 361, 368-371; Otis Elevator Company v. Iran, (1987) 14
Iran-US CTR 283, 293-5; Eastman Kodak Company v. Iran, (1987) 17 Iran-US CTR 153, 163-8.
102 See supra n. 3.
If the VCLT procedural conditions do not apply, Respondent has a stronger argument that it validly
terminated the Marthite Convention.
4. PermanentSovereignty over NaturalResources
Finally, Applicant may argue that it is not bound by the Marthite Convention because it conflicts with
the principle of permanent sovereignty over natural resources. Elaborated in GA resolutions 1803
(XVII), 3201 (S.VI), and 3281 (XXIX), the principle of permanent sovereignty. In Armed Activities, the
Court recognized the principle as one of customary international law.l°3 Paragraph 1 in resolution 1803
provides that "[t]he right of peoples and nations to permanent sovereignty over their natural wealth and
resources must be exercised in the interest of their national development and of the well-being of the
people of the State concerned." 104 Applicants relying on this may argue that the principle conflicts with
the continued application of the Marthite Convention because the Convention would require Applicant
to surrender the newly discovered value of its mineral wealth to Respondent.
There are two ways that Applicant can establish that the principle of permanent sovereignty governs in
the conflict with the Marthite Convention. First, it can try and show that the principle is a jus cogens
norm. Second, it can rely of the principle lex posteriorilegi prioriderogat. VCLT art. 64 provides that a
treaty is void if it conflicts with a newly emerged jus cogens norm. 10 5 A jus cogens norm, as defined in
VCLT art. 53 is one that the international community of states as a whole recognizes as not permitting
any derogation. 106 In support of this, Applicant can rely on the dissenting opinion of Judge Weeramantry
in East Timor, where he treated the principle as one of jus cogens. Applicants additionally can
emphasize the link between permanent sovereignty and self-determination, which is widely accepted as
ajus cogens principle.
Second, Applicant could rely on the general principle lex posteriori legi priori derogat. Under this
general principle of law, later rules of later supersede prior ones. l10 Applicant can argue that the
permanent sovereignty principle, first fully elaborated in GA Res. 1802 in 1962, supersedes a treaty
from the 1930s.
In response, there are several points Respondent might raise. The first is to challenge the jus cogens
status of the principle of permanent sovereignty over natural resources. The VCLT definition of jus
cogens focuses on the acceptance of a rule by the "international community of States as a whole." 10 9 An
argument along these lines that the principle is not jus cogens is supported by any evidence that the
principle is controversial among states or that states accept derogations. In this case, there are numerous
citations to which Respondent can rely on to assert that this principle's jus cogens status is debatable at
best. As judges, we encourage you to examine Applicant's claims by critiquing the fact that the

103 Armed Activities, 244.

104G.A. Res. 803 (XVII I (Dec. 14, 1962,.
10 5
VCLT art. 64.
106
VCLT art. 53.
107 East Tlimor (Dissentin Opinion of Judge Weeramantry), 202-204,210.
108 See, e.g., Shaw, supra note 9, at 123.
109
VCLT art. 53.
arguments for permanent sovereignty over natural resources as jus cogens rose contemporaneously with
an open push by decolonized nations to attempt to assert sovereignty over private enterprises that had
legal rights to these resources. Moreover, aside from Judge Weeramantry's dissent, the ICJ has been
wont to assert the jus cogens nature of this right.
Additionally, Respondent should argue that the principle of permanent sovereignty does not, by its own
terms, impact the Marthite Convention. Paragraph 8 of GA Resolution 1803 specifies that "[f]oreign
investment agreements freely entered into . . .shall be observed in good faith." 110 Characterizing the
Marthite Convention as such an agreement, Respondent can argue that the Marthite Convention is
specifically protected by the content of the principle of permanent sovereignty over natural resources.
Responding to an argument relying on the lex posterioriprinciple, Respondent might rely on the general
principle lex specialis legi generali derogat, arguing that the Marthite Convention
11
is a specialized
regime that should take precedence over the general rule of permanent sovereignty.
Finally, Respondent might argue that Applicant exercised rather than limited its sovereignty over its
natural resources by concluding the Marthite Convention. This parallels Austro-German Customs
Regime, where the PCIJ determined that Austria did not alienate its independence by entering a customs
union with Germany. 112 At any rate, judges should expect this argument to be raised (if at all) as a
second or third argument by Applicant. Those Applicants who do raise this argument first are asserting a
much less sound basis for their claims under Issue III then they could otherwise address. If that is the
case, the bench should try and move Applicants on to other arguments in their submission after a
reasonable period of time.

D. Question Presented IV: Treaty Interpretation, Treaty Suspension, Countermeasures

App11iant's Submissionl Resp)onident's Submissionl
Reverentia' s removal of the software at the Reverentia' s removal of the software in the
Marthite extraction facilities violated Marthite extraction facilities was consistent
international law. with international law.

The main issues involved in QP 4 are: 1) whether, under the terms of the Marthite Convention, the
software is the property of Applicant or Respondent/RMT; 2) whether the removal of the software was a
lawful suspension of the treaty in response to a material breach; and 3) whether the removal of the
software constituted a lawful countermeasure.
QP 4 presents the parties with the challenge of reconciling their arguments with their respective
positions on QP 3. Thus, Applicant must argue that it was entitled to the software despite the termination
of the Marthite Convention. Respondent must argue that it lawfully withheld the software that the

110 GA Res. 1803,para. 8.

111Shaw, supra note 9, at 124.
112 Customs Regime Between Germany and Austria, advisory opinion, 1932 PCUJ ser. A/B, no. 41 at 47 et seg.
Marthite Convention otherwise required it to provide. For both sides, strong arguments will address both
possibilities in the alternative.
1. If the Marthite Convention was terminated/ ownership of the software
If Applicant is correct in its position on QP 3, the Marthite Convention was terminated by 2 April 2012
and was therefore not in force when Respondent removed the software from the mining facilities. If the
Convention was not in force, QP 4 turns on the issue of whether Applicant owns the software in
question. Under Article 1 of the Marthite Convention, Respondent undertook:
to construct [certain] Marthite mining and mining-support facilities ... and to provide
technology and government engineers to maintain, equip, and operate such facilities.
Under Article 2 of the Convention, "the facilities described in Article 1" belong to the Government of
Agnostica. Applicant will likely argue that the software forms part of "facilities" that belong to it.
Respondent will likely argue that the software is "technology" that it was obligated to provide while the
treaty was in force. The question is one of treaty interpretation. The rules of treaty interpretation
discussed in section C.2 above apply.
a) Arguments for Applicant
Applicant should seek to show that the software is part of the mining facility under the meaning of the
treaty. To do this, Applicant will likely rely on a teleological interpretation of the treaty. A strong
Applicant argument in this respect will rely on definitions of "facility" and "technology" to create
ambiguity surrounding the "ordinary meaning" of the treaty. In light of this, Applicant may point to
recital (d) of the preamble of the Convention, which refers to the parties' desire "to ensure reliable
supply of Marthite." Applicant may also point to Article 12 of the Convention, which establishes its
term for 99 years. Applicant can use these to argue that the object of the treaty encompasses the
continuing existence of functional mines in Agnostica at the treaty's termination. In light of this,
Applicant can argue that software must remain in the facility in order to preserve the effective mining
operations and fulfill this aspect of the treaty's purpose.
b) Arguments for Respondent
Respondent should seek to show that the software constitutes "technology" under the meaning of the
Marthite Convention, relying on the text of the treaty. For example, the first definition of "facility" listed
in Merriam-Webster's online dictionary provides "something (such as a building or large piece of
equipment) that is built for a specific purpose. Similarly, the first definition in the Oxford Dictionary
of English reads: "a place, amenity, or piece of equipment provided for a particular purpose." 114 This

113 Merriam-Webster, Facility, htp://www.merriam-webster.com/dictionar/facility (last visited Nov. 18, 2014).

114OXFORD DICTIONARY OF ENGLISH (3d ed. 2010). Worth noting, though, is that dictionary definitions may also favor
Agnostica. For example, the Oxford English Dictionary includes as its third definition of facility "the physical
means or equipment required for doing something, or the service provide by this; freq. with modifying word, as
educationalfacilities,postalfacilities,retailfacilities, etc. In sing.: a service or feature of a specified kind; (also) a
building or establishment that provides such a service."
Indeed, regarding the meaning of facility, there seems to be a distinction between North American and Commonwealth
usage. North American usage seems much more focused on the concept of building or place, and Commonwealth
usage on equipment and means. For example:
distinction is supported by the terms of Article 1 of the treaty, explaining that the technology and
workers are "to maintain, equip, and operate" the facilities. In light of this, Respondent can argue that
the software is "technology," ownership of which need not be transferred to Applicant.
This argument is supported by the text of Article 1 as a whole. Article 1 provides that the "facilities" are
something to be constructed. Respondent can argue that, in light of this, facilities should be read to mean
buildings and not include machinery or technology. Therefore, Respondent can assert that it had every
right to take the software as it belonged to them.
2. If the Marthite Convention remains in force
If Respondent's position on QP 3 is accepted by the Court to be correct, the Marthite Convention
remained in force after 2 April 2012. Thus, under the terms of Article 1 of the Marthite Convention,
Respondent remained obligated to supply software for the mining during this period. In order to
demonstrate that it did not violate this obligation while maintaining that the treaty was in effect,
Respondent will need to demonstrate either that the treaty was suspended or that a circumstance
precludes the wrongfulness of its actions. As the Court noted in Gabcikovo-Nagymaros Project, these
two questions are analytically distinct and subject to separate bodies of rules. 11 This is consistent with
VCLT, Art. 73, which provides that "[t]he provisions of the [VCLT] shall not prejudge any question that
may arise in regard to a treaty ...from the international responsibility of a States . ,116

a) Suspension of the treaty

Dictionary Definitions of "facility"

Australian Oxford 3. [especially in pl.] an opportunity, the equipment, or the resources for doing
Dictionary (2d ed. something.
2004) 4. an establishment set up to fulfil a particular function or provide a particular service.

Canadian Oxford 2. [esp. in pl.] the physical means, equipment, resources, or opportunity required to do
Dictionary (2d ed. something.
2004) 3. N. Amer. a building designed for a specific purpose.

New Zealand Oxford 3 [esp. in pl.] an opportunity, the equipment, or the resources for doing something.
Dictionary (2005) 4. a building or buildings with a specific, usu. Public, use: the new library is an
excellent facility.
New Oxford American 1. space or equipment necessary for doing something: cooking facilities I facilities for
Dictionary (3d ed. picnicking, camping, and hiking.
2010)

NB: the editors of the bench memorandum welcome suggestions for additions to this table, particularly from English
dictionaries published outside of Australia, Canada, New Zealand, the United Kingdom, or the United States.
115 Gaba6kovo-NagymarosProject, at 47.
116 VCLT art. 73.
Respondent may argue that its removal of the software was justified because the Marthite Convention
was suspended as a consequence of Applicant's breach. In order to do so, Respondent must first show
there was a material breach by applicant. Second, Respondent must show that any applicable procedural
conditions were met. Finally, Respondent must exercise care not to argue that the suspension of the
treaty caused it not to be "in effect" as this would conflict with its submission in QP3.
(1) Material Breach
In order to successfully invoke Applicant's breach as a justification for suspending the Marthite
Convention, Respondent will need to show that Applicant materially breached the Convention. Article
60(3) includes in its definition of material breach the unlawful denunciation of a treaty. 117 This is
consistent with the position of customary international law prior to the VCLT, under which "[t]he
denunciation by a party to a treaty when it contains no express term permitting denunciation and no such
term can be implied, is unlawful and constitutes a breach of treaty."' 118 Because Applicant's denunciation
of the treaty was unlawful, Respondent may rely on this as a material breach of the treaty.
(2) Procedural Preconditions
If the VCLT rules noted above apply, Respondent did not validly exercise a right of suspension. The
Compromis contains no evidence that Respondent either notified Applicant in writing of its plans to
suspend performance of the Marthite Convention or effected that plan with a formal instrument. In the
absence of notification, compliance with the waiting period was impossible.
If the VCLT procedural conditions do not apply, Respondent has a stronger argument that it validly
suspended application of the treaty
(3) Respondent's Semantic Difficulty
Respondent will need to exercise caution in raising the suspension argument. In QP 3, Respondent asks
the Court to adjudge and declare that the Convention "was in effect until 1 March 2013." The language
used in VCLT Article 60(1) refers to "suspending the operation of [a] treaty." 119 Judges may want to
challenge agents of Respondent using the suspension argument on the consistency of their position that
the treaty was in effect yet suspended.
b) Countermeasures
If the Marthite Convention remained in force at the time of the withdrawal of the software, Respondent
will likely also rely on countermeasures to justify its actions. The main issues are whether Respondent
sufficiently called on Applicant to stop its breach and whether Respondent's response was proportional.
A countermeasure is an act taken by one state in response to a violation of international law by another
state in order to induce the latter's compliance with international law. 120 A state is not responsible
12 1
for an
act that otherwise would violate international law if that act is a lawful countermeasure.

117 VCLT art. 60(3).

118 Lord McNair, The Law of Treaties 539 (1961).

119 VCLT art. 60(1).
120 See Shaw, supra note 9, at 794. Older authorities often use the term "reprisals" in place of "countermeasures". This usage
is outmoded; modern parlance uses "reprisals" to refer to armed actions and "countermeasures" to unarmed actions
The leading judicial authority on countermeasures is the ICJ judgment in Gabcikovo-Nagymaros
Project.122 As the ICJ noted there, countermeasures are subject to conditions under customary
international law. 123 First, a countermeasure "must be the response to a previous international wrongful
act of another State and must be directed against that State."124 Second, a state taking a countermeasure
"must have called upon the State committing the wrongful act to discontinue its wrongful conduct or to
make reparation for 125
ito it."
acout Third,
suffredtakng "the effects
ofthe ighs inof a countermeasure
. 126 must be commensurate with the injury
suffered, taking into account of the rights in question. Fourth, the purpose of the countermeasure
"must be to induce the wrongdoing State to comply with its obligations under international law, and that
127
the measure must therefore be reversible."
The ILC definition of countermeasures contains the same core elements as the ICJ definition. Thus,
ARSIWA art. 49(1)-(2) provides:
1. An injured State may only take countermeasures against a State which is responsible
for an internationally wrongful act in order to induce that State to comply with its
obligations under part two.
2. Countermeasures are limited to the non-performance for the time being of
international obligations of the State taking the measures towards the responsible
State. 128
Consistently with the ICJ's second condition, ARSIWA Article 52(1)(a) provides:
Before taking countermeasures, an injured State shall . . . call upon the 129responsible
State, in accordance with article 43, to fulfill its obligations under Part Two.
Consistently with the ICJ's third condition, ARSIWA Article 51 provides:
Countermeasures must be commensurate with the injury suffered, taking into account
the gravity of the internationally wrongful act and the rights in question. 130

to induce compliance with an international obligation. Additionally, countermeasures are to be distinguished from
retorsions. Retorsions are otherwise lawful acts taken in response to a violation of international law, for example
severing diplomatic relations.
121 Id.; ARSIWA art. 22.
122 Gabikovo-Nagymaros Project (Hungary/Slovakia), 1997 I.C.J. 7.
123 Id. 83.
124 Id. 184.
125 Id. 85.

126 Id. 186.

127 Id. [87.
128 ARSIWA art. 49(1)-(2).
129 ARSIWA art. 52(1)(a).
130 ARSIWA art. 51.
Tribunals considering countermeasures after the adoption of ARSIWA have treated ARSiWA and
Gabdikovo-Nagymaros Project as a consistent body of law. For example, in ADM v Mexico, an ICSID
Additional Facility tribunal considered "as an authoritative statement of customary international law13on
1
countermeasures the position of the International Court of Justice, as confirmed by the ILC Articles."
(1) Internationally Wrongful Act
Assuming that the Marthite Convention remains in force, it will be straightforward for Respondent to
show Applicant committed an internationally wrongful act. The most likely violation of international
law that Respondent might rely on is the denunciation S132of the Marthite Convention. VCLT Article 26
codifies the general principle of law pacta sunt servanda. In the terms of the article, "[e]very treaty in
force is binding upon the parties to it and must be performed by them in good faith." 133 Consequently,
"[t]he denunciation by a party to a treaty when it contains no express term permitting denunciation and
no such term can be implied, is unlawful and constitutes a breach of treaty."' 134 If Applicant's
denunciation was indeed unlawful, Applicant was in breach of the Marthite Convention. This is a
violation of international law that supports Respondent's resort to countermeasures.
(2) Calling upon & Notification
The second element that Respondent must show is that it called upon Applicant to cease its wrongful
act. In the present case, Respondent "categorically rejected Applicant's [denunciation]," removed its
engineers from the mining facilities, and directed the engineers to remove software "until such time as
Applicant agrees to respect its treaty obligations." The issue is whether this suffices as a call for
Applicant to end its unlawful denunciation.
In its commentaries to ARSIWA, the ILC noted that "there are usually quite extensive and detailed
negotiations over a dispute before the point is reached where some countermeasures are
contemplated." 135 Consistent with this, in Gabcikovo-Nagymaros Project, the Court considered the
sufficiency of Czechoslovak/Slovak calls on Hungary to resume its performance of a treaty between the
parties. 136 In that case, Czechoslovakia "informed Hungary that it would feel compelled to take
unilateral measures if Hungary were to persist in its [non-performance]." ,137 As evidence of this, the
Court cited a Note Verbale dated 30 October 1989.138 However, Czechoslovakia continued to plan, as

131 ADM v. Mexico 125.

132
VCLT art. 26.
133Id.

134 Lord McNair, The Law of Treaties 539 (1961).

135 ARSIWA Commentaries at 136.
136 Gabczkovo-Nagymaros Project, at 84.
137
Id. 61.
138 Id.
opposed to implement, its response as late as spring 1991.139 Thus,140
giving Hungary over one year to
resume performance was held sufficient to enable countermeasures.

Applicant will likely argue that it was not notified of the intention to take countermeasures with
sufficient time. In support of this point, Applicant may rely on authorities such as the ARSIWA
Commentaries and Gabcikovo-Nagymaros Project. In the absence of a delay between the announcement
of Respondent's rejection of Applicant's position and the countermeasure, Applicant will argue it was
not notified.
Respondent will likely argue that its intention to take countermeasures was made clear from its actions
leading up to withdrawal of the software. On 21 February 2012, Respondent made its position clear that
there was "no reason" to end the Marthite Convention. In response to an argument that applicant was
also not notified, Respondent may argue that, consistently with art. 52(b), the countermeasures were
urgent. 14 1 In support of this, Respondent may argue that notifying Applicant would have given
applicable the opportunity to remove the software first, thus preventing the countermeasure.
(3) Proportionality
The third element Respondent must show to demonstrate that its countermeasures were lawful is their
proportionality.
wron ndTheheproportionality
act ful ight in analysis
. 142 must "tak[e] into account the gravity of the internationally
wrongful act and the rights in question." As an ICSID Additional Facility tribunal noted in ADM v.
Mexico, "[p]roportionality requires not only employing the means 143
appropriate to the aim chosen, but
implies an assessment of the appropriateness of the aim itself."

In support of the proportionality of the countermeasure, Respondent may contrast the present case from
ADM v. Mexico. In that case, the tribunal considered whether Mexico could suspend an obligation to an
American investor under the investment protection provisions of NAFTA in response to a U.S. violation
of trade-regulating provisions of NAFTA. 144 The tribunal held that because "the obligations allegedly
breached by the United States do not involve investment protection standards for private individuals ...
[t]he adoption of the Tax [against investors] was not proportionate or necessary and reasonably
connected to the aim said to be pursued."' 14 5 The present case is distinguishable because Respondent's
aim and measure are arguably much more connected. Respondent was withholding support for mining
Marthite, which it was being denied the right to buy. Because of the connection of these two aims,
Respondent's measure can be argued to be more proportional than the measure at issue in ADM v.
Mexico.
Applicant will likely argue that the consequences of Respondent's measure make it disproportional. In
Gabcikovo-Nagymaros Project, the Court considered obligations outside the treaty in question in

139 Id.
140 Id. 84.
141 ARSIWA art. 52(2).
142
ADMI v. Mexico [ 152.
143 Id. 154.
144 Id. 155.
145 Id. 158.
making a proportionality determination. 146 There, the Court held that because "Czechoslovakia, by
unilaterally assum[ing] control of a shared resource, and thereby depriv[ing] Hungary of its right to an
equitable and reasonable share of the natural resources of the Danube [it] failed to respect the
proportionality which is required by international law." 147 In the present case, Applicant may argue that
Respondent's countermeasure is inconsistent with international obligations beyond the Marthite
Convention. One example (of many possibilities) would be article 12 of the ICESCR, under which both
parties must "recognize the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health." 14 8 By reducing the global supply of Marthite to a trickle, Respondent
arguably has taken a measure inconsistent with this right. On that ground, its countermeasure is arguably
disproportional.
(4) Directed Against and Reversibility
The fourth element Respondent must show to demonstrate that its countermeasure was lawful is that it
was directed against Applicant to induce compliance, and that it was reversible. This element should not
be in serious contention.
The countermeasure is directed against Applicant because it is the non-performance of an obligation
under a bilateral treaty with Applicant. In ARSIWA's terms, the violation justified as a countermeasure
must be the non-performance of an obligation "towards the responsible State." 149 Because the obligation
to provide software is owed only to Applicant in the bilateral Marthite Convention, the countermeasure
is directed against Applicant.
The reversibility of the countermeasure is supported by the 2 May 2012 article by the Reverentian Vice-
President. Reverentia ordered the removal of engineers and software until Applicant returned to
compliance with the Marthite Convention.

146 Gabeikovo-Nakvmaros Project, at 85.

147 Id.
148 ICESCR art. 12(1).
149 ARSIWA art. 49(2).
IV. Appendix A: Introduction to International Law
This section is an introduction to public international law for judges who may not have professional
experience or training in the field. There are important distinctions between international law and most
domestic legal systems. The most significant for the moot judge is the rigid definition of what sources of
law are acceptable before the Court.
A. General
The conduct and rules of the International Court of Justice (ICJ) are governed by the Statute of the
Court. Under Article 38(1) of the ICJ Statute, the ICJ may consider the following sources of
international law in order to decide disputes before it:
(a) treaties or conventions to which the contesting States are parties;
(b) international custom, as evidence of a general practice accepted as law;
(c) general principles of law recognized by civilized nations;
(d) judicial decisions and the teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.
Commentators disagree as to whether the first three sources are listed in order of importance.
Judges from common-law systems should note the status of precedent. Article 59 of the ICJ Statute
states that decisions of the Court are binding only on the parties to the case, and are without formal
effect as precedent. In practice, the ICJ often cites its prior decisions, and those of its predecessor, the
Permanent Court of International Justice, as persuasive authority, pursuant to Article 38(1)(d).
Additionally, the Court frequently evaluates rules of customary international law in its opinions and
subsequently relies upon those evaluations in later decisions.
Resolutions of the United Nations General Assembly are not, of themselves, binding upon the Court.
Although Resolutions may be evidence of customary international law, the General Assembly is not
analogous to a domestic legislature.
B. Treaties
Treaties are agreements between and among States, by which parties obligate themselves to act, or
refrain from acting, according to the terms of the treaty. Rules regarding treaty procedure and
interpretation are defined in the Vienna Convention on the Law of Treaties (VCLT).
Article 26 of the VCLT sets out the fundamental principle relating to treaties, pacta sunt servanda,
which provides, "Every treaty in force is binding upon the parties to it and must be performed by them
in good faith." Once a State becomes a party to a treaty, it is bound by that treaty.
Article 34 of the VCLT adds that a treaty does not create rights or obligations for State that are not
parties to the treaty. However, even if a State is not party to a treaty, the treaty may serve as evidence of
customary international law. Article 38 of the VCLT recognizes this "back-door" means by which a
treaty may become binding on non-parties. The ICJ has also recognized this possibility in the Federal
Republic of Germany v. Denmark, North Sea Continental Shelf Cases, 1969. Judges should be aware,
however, that situations arise where some provisions of a treaty - for example, many provisions of the
International Covenant on Civil and Political Rights - may reflect or codify customary international law,
while other parts do not.
37
Article 31 of the VCLT states that "a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and
purpose." The article further provides that the context of a treaty can be taken from a variety of sources
including the treaty's preamble and annexes, any prior or subsequent agreements between the parties
related to the treaty, and any relevant rules of international law. Article 32 states that when interpretation
methods under Article 31 would lead to an ambiguous or unreasonable result, supplementary methods of
interpretation can be used, including reference to the preparatory work of the treaty and the
circumstances of its conclusion.
C. Customary International Law
The second source of international law is customary international law. A rule of customary international
law is one that, whether or not it has been codified in a treaty, has binding force of law because the
community of states treats it and views it as a rule of law. In contrast to treaty law, a rule of customary
international law is binding upon a state whether or not it has affirmatively assented to that rule.
In order to prove that a given rule has become a rule of customary international law, one must prove two
elements: widespread state practice and opiniojuris - the mutual conviction that the recurrence (of state
practice) is the result of a compulsory rule.
"State practice" is the objective element, and simply means a sufficient number of states behaving in a
regular and repeated manner consistent with the customary norm. Evidence of state practice may include
a codifying treaty, if a sufficient number of states sign, ratify, and accede. There is some dispute among
commentators as to whether the practice of a small number of states in a particular region can create
"regional customary international law" or whether the practice of particularly affected states, e.g. in the
area of space law, can create custom that binds other states, although the ICJ has acknowledged the
possibility.
Opinio juris is the psychological or subjective element of customary international law. It requires that
the state action in question be taken out of a sense of legal obligation, as opposed to mere expediency.
Put another way, opinio juris, is the "conviction of a State that it is following a certain practice as a
matter of law and that, were it to depart from the practice, some form of sanction would, or ought to, fall
on it."
Customary international law is shown by reference to treaties, decisions of national and international
courts, national legislation, diplomatic correspondence, opinions of national legal advisers, and the
practice of international organizations. Each of these items might be employed as evidence of state
practice, opinio juris, or both. In the North Sea Continental Shelf Cases, the ICJ stated that the party
asserting a rule of customary international law bears the burden of proving it meets both requirements.
D. General Principles of Law
The third source of international law consists of "general principles of law." Such principles are gap-
filler provisions, utilized by the ICJ in reference to rules typically found in domestic courts and domestic
legal systems in order to address procedural and other issues.
The bulk of recognized general principles are procedural in nature (e.g., burden of proof and
admissibility of evidence). Many others, such as waiver, estoppel, unclean hands, necessity, and force
majeure, may sound familiar to a common-law practitioner as equitable doctrines. The principle of
general equity in the interpretation of legal documents and relationships is one of the most widely cited
general principles of international law.
It is important to note, however, that "equity" in this sense is a source of international law, brought
before the court under Article 38(1)(c) of the Statute of the ICJ. It is an inter legem (within the case)
application of equitable principles, and not a power of the Court to decide the merits of the case ex
aequo et bono (that is, to simply decide the case based upon a balancing of the equities), a separate
matter treated under Article 38(2) of the Statute.
E. Decisions and Publicists
The final source of international law is judicial decisions and teachings of scholars. This category is
described as "a subsidiary means of finding the law." Judicial decisions and scholarly writings are, in
essence, research aids for the Court, used for example to support or refute the existence of a customary
norm, to clarify the bounds of a general principle or customary rule, or to demonstrate state practice
under a treaty.
Judicial decisions, whether from international tribunals or from domestic courts, are useful to the extent
they address international law directly or demonstrate a general principle.
"Teachings" refers simply to the writings of learned scholars. Many student competitors make the
mistake of believing that every single published article constitutes an Article 38(1)(d) "teaching."
However, the provision is expressly limited to teachings of "the most highly qualified publicists." For
international law generally, this is a very short list, and includes names like Grotius, Lauterpacht,
Oppenheim, Jennings, and Kelsen.. This list of names is NOT exclusive but the concept still generally
applies to an elite category of jurists whose writings have transcended above others. However, as per the
language of the statute, students are free to cite to any publicists. When in doubt about the validity of a
source, please feel free to question oralists about the identity and validity of their cited author.
Furthermore, authoritative sources within this list include the writings of former Judges, the secondary
opinions of Judges who are not in the majority of their cases, and documents created by the International
Law Commission (ILC). Within the context of a specific field, there are additional scholars who would
be regarded as "highly qualified publicists."
F. Burdens of Proof
In the Corfu Channel Case (U.K. v. Albania, 1949), the ICJ set out the burdens of proof applicable to
cases before it. The Applicant normally carries the burden of proof with respect to factual allegations
contained in its claim by a preponderance of the evidence. The burden falls on the Respondent with
respect to factual allegations contained in a cross-claim. However, the Court may draw an adverse
inference if evidence is solely in the control of one party that refuses to produce it.

V. Appendix B: Timeline of Events

18 thCentury Credera colonizes the Thanatosian Plains, creating the colonies of
Agnostica and Reverentia
1919 Crederan Census determines that Agnostica's population is 70% ethnic
Agnostican and 30% ethnic Reverentian.
1925 Credera grants independence to both Agnostica and Reverentia.
1 August 1925 Establishment of the Federal Republic of Agnostica and the State of
Reverentia.
1925 - approximately 1950s Reverentian authorities make attempts to encourage Agnorevs to return to
Reverentia. 85% of Agnorevs stay within Agnostica.
April 14, 1938 Conclusion of the Marthite Convention which was subsequently ratified
by both Agnostica and Reverentia. The agreement under the Convention
runs smoothly until late 2011.
1955 Release of Agnostican ministry study detailing the relative wealth and
prosperity of the Agnorevs compared to the average Agnostican family.
1959 Agnostica and Reverentia join the United Nations.
1961 Agnostica and Reverentia ratify the Montevideo Convention.
1983 Agnostica and Reverentia ratify the ICCPR, ICESCR, and the 1969
VCLT.
1990 Agnostica and Reverentia ratify ICERD.
Late 2011 ILSA announces scientific findings regarding the healing characteristics of
Marthite when used to treat infant and early-childhood autoimmune
diseases. Within weeks, RMT starts selling 75% of the total quantify of
Marthite mined to pharmaceutical companies.
1 February 2012 Prime Minister Moritz proposes terminating the Marthite Convention to
President Nuvallus.
21 February 2012 President Nuvallus rejects Prime Minister Moritz' proposed termination.
2 April 2012 Agnostica declares the Marthite Convention to be terminated and without
further effect. Prime Minister Moritz also discloses that Agnostica will be
leasing the Marthite facilities to Baxter Enterprises, a multinational
corporation based in the Cayman Islands.
3 April 2012 Agnostica announces that the lease with Baxter has entered into force.
President Nuvallus orders Reverentian engineers at the facilities to return
to Reverentia and to remove any software installed by RMT at the
facilities.
Late April 2012 Baxter engineers arrive at the facilities only to find that the Reverentian
withdrawal of software and engineers has crippled mining capacity.
Baxter's personnel describe the actions as sabotage.
2 May 2012 Reverentia's Vice President publicly accuses Agnostica of breaching the
Marthite Convention while defending Reverentia's actions as reversible
and by no means sabotage.
End May 2012 Marthite facilities have returned to an operational capacity. However,
without the software, production relies heavily on manual labour provided
by local Agnorevs.
31 August 2012 Despite being unable to restore software systems at the facilities, Baxter
engineers report production of up 100 kg/day of Marthite. Nearly all
extracted Marthite is sold to Baxter with 2-3 kg sold daily to traditional
Marthite users at inflated prices.
1 October 2012 The Agnostican Parliament passes the Marthite Control Act.
Mid November 2012 Supervisors at the largest Marthite facility begin instituting random
searches of workers after reports of theft of petty cash.
23 November 2012 Gohandas Sugdy, a 19 year old Agnorev miner, is arrested under the
Marthite Control Act for possessing two pocketfuls of Marthite
24 November 2012 Gohandas Sugdy has his arraignment in which he explains that he took the
Marthite to save his ailing grandfather. The judge regretfully remands
Sugdy to jail to await trial. During the night, guards discover that Sugdy
hanged himself in an apparent suicide. Within hours of his death, Agnorev
protestors begin collecting peacefully outside the jail in which he died.
28 November 2012 Gohandas Sugdy's grandfather dies of apparent heart failure.
November-December 2012 The crowd protesting outside the jail grows and Agnorev protests intensify
as speakers begin airing long-standing Agnorev grievances held against
the Agnostican majority population. Demonstrations increase in number,
frequency, and intensity. Prime Minister Moritz mobilizes troops in an
effort to maintain order.
26 December 2012 Police and protestors clash in Thanatos. 60 demonstrators are killed and
several protestors and lightly armed police are injured. The day is
remembered by the media as the Boxing Day Massacre.
2 January 2013 As protests continue, Tomds Bien proposes a resolution in the Agnostican
Parliament requesting a de-escalation of the police and military presence
in East Agnostica. The resolution fails 46-54 with all East Agnostican
members voting in favour.
4 January 2013 Bien publicly announces his intent to pursue dissolving East and West
Agnostica under the Agnostican Constitution.
5 January 2013 Bien presents his dissolution motion in the Agnostican Parliament where it
fails with all 67 West Agnostican representatives voting against and 29 or
33 East Agnostican representatives voting to support dissolution.
9 January 2013 President Nuvallus delivers a speech supporting the Agnorevs wherein he
declares that Reverentia will do all in its power to ensure Agnorev
freedom.
10 January 2013 Reverentia's Parliament adopts the resolution titled "On the Crisis in East
Agnostica." Prime Minister Moritz promptly denounces the resolution.
16 January 2013 East Agnostica's provincial parliament schedules a plebiscite on the
question of succession. Prime Minister Moritz orders the National Police
to block the referendum.
18 January 2013 President Nuvallus orders several hundred Reverentian soldiers to the
border with East Agnostica with order to not leave Reverentian territory.
He issues a diplomatic note to Prime Minister Moritz stating that the troop
movements are related to his concerns over both spillover violence and the
need to provide aid to any Agnorevs taking flight from Agnostica.
29 January 2013 The plebiscite is held with 73% of voters supporting secession.
30 January 2013 The newly christened Agnorev People's Parliament (formerly the East
Agnostican provincial parliament) ratifies the secession of East Agnostica
and sends a delegation to Reverentia with the purpose of discussing the
integration of the "territory of the Agnorev people" with the State of
Reverentia.
6 February 2013 The President of the Security Council expresses his concerns over the
territorial integrity of Agnostica and the possibility of an illegal
interference into Agnostica's domestic affairs. Subsequently, the European
Union, ASEAN, and other regional bodies with interests in the region
issue communiqu6s describing the potential annexation by Reverentia as a
"threat to international peace and stability."
18 February 2013 5 of the largest pharmaceutical companies announce the suspension of
Marthite purchases pending a conclusive legal resolution to the status of
East Agnostica and Marthite itself.
22 February 2013 President Nuvallus and Tomds Bien announce the signing of the
Integration Agreement making East Agnostica a semi-autonomous
province of Reverentia. Reverentian army units immediately move into
East Agnostica.
24 February 2013 Reverentia's Parliament ratifies the Integration Agreement.
25 February 2013 The APP ratifies the Integration Agreement.
1 March 2013 The annexation is declared effective by the terms of the Integration
Agreement.
VI. Appendix C: Guide to People, Places, and Acronyms

Agnorev
A person of Reverentian ethnicity and descent living in Agnostica; the population grew as a
direct result of cross-border migration during the colonial era.

Agnorev Peoples' Parliament (APP)

Self-styled governing body composed of members of the former provincial assembly of East
Agnostica.

Agnostica
A mineral resources rich nation; the Applicant

Agnostican Parliament
Agnostica's federal Parliament.

Antonis Nuvallus
President of Reverentia.

Baxter Enterprise, Ltd.

A multinational corporation incorporated in the Cayman Islands.

Credera
Former ruler of the countries now known as Agnostica and Reverentia.

East Agnostica
One of the two federal provinces of Agnostica; home to the overwhelming majority of
Agnostica's Agnorev population. Post-integration agreement, held out to be a province of
Reverentia.

East Agnostican provincial assembly

Constitutionally guaranteed local assembly with control over cultural affairs and education.

Gohandas Sugdy
19 year old Agnorev miner whose suicide became a rallying point for Agnorev frustrations.

ICJ
The International Court of Justice

ILSA
Institut Luxembourgeois des Sciences Appliquees.
Integration Agreement
Agreement signed between President Nuvallus and Tomdis Bien making East Agnostica a semi-
autonomous province of Reverentia with the APP as its provincial legislature.
Marthite
A mineral-salt found only in East Agnostica; commonly used in traditional Reverentian medicine
it soon became renowned for its healing properties in treating early childhood and infant auto-
immune diseases.

Marthite Control Act (MCA)

Act passed by Agnostican Parliament banning the sale or transfer of Marthite into Reverentia as
well as the unauthorized purchase, sale, or possession of Marthite within Agnostica.

Marthite Convention
Treaty between Agnostica and Reverentia governing the production and sale of Marthite.

Maxine Moritz
Prime Minister of Agnostica.

Reverentia
An industrialized state; the Respondent

Reverentian Marthite Trust (RMT)

A state-owned Reverentian corporation which had the authority to sell Marthite under the
Convention.

The Reverentian Times

A national print newspaper located in Reverentia.

Tomis Bien
The Agnorev head of the East Agnostican provincial legislature and a member of the Agnostican
federal Parliament.

Thanatos
The capital of East Agnostica.

Thanatosian Plains
Landlocked region which is home to Reverentia and Agnostica.

Tuklu Range
Mountain range which surrounds Agnostica on all sides except its shared border with Reverentia.

VCLT
The Vienna Convention on the Law of Treaties

West Agnostica
The second province within the Federal Republic of Agnostica; home to the Agnostican capitol
and Parliament.
VII. Appendix D: Suggested Questions for the Oral Rounds
A. International Law Generally
1. Is there any priority or hierarchy of the sources of international law mentioned in Art. 38 of the
ICJ Statute?
2. What is customary international law? What are the elements of customary international law?
3. When asserting a state's obligations under customary international law:
a. Where can we find evidence of relevant State practice?
b. What is opiniojuris? How is it proven?
4. Is the ICJ bound by its prior decisions?
5. What specific remedies is the Applicant/Respondent seeking? Is the ICJ permitted by its Statute
to grant those remedies?
6. What is the basis of standing for the party seeking relief?
7. What is the standard of proof with respect to this issue? Which party bears the burden of proof?
8. If this Court determines that the lack of factual certainty allows multiple, conflicting inferences,
what should this Court do then?
9. If a state has conflicting obligations under two treaties (or a treaty on the one hand and
customary international law on the other), which obligation controls? What principle does the
Court use to determine which obligation controls?
10. What is the Court to do if it finds there is a lacuna in the law?
11. What is the definition of "territory?"
12. When two States are Parties to an earlier treaty, and one is a Party to a later treaty but the other is
only a signatory, what law governs a conflict between those two States?

B. Question Presented 1
1. What is the principle of non-intervention and how has it been defined?
2. What acts constitute interference? What acts constitute intervention?
3. What are the standards of premature recognition? How does one decide when a state has
prematurely recognized an entity?
4. Is there more than one kind of recognition? Which is applicable here?
5. Do Reverentian troop movements constitute a threat of force? What exactly is a threat of force
and do you have any examples from cases where courts have deemed troop movements to be a
threat of force?
6. Could Reverentia act with the consent of the APP and Tomds Bien?
7. Is there a difference between intervention and interference? What constitutes interference and
when can it rise to the level of intervention?
8. When does an act rise to being an act of aggression? Do threats ever rise to the level of an act of
aggression? Examples?
9. What are the limits set on a state's internal authority?
10. What are the situations in which a state can cite spillover violence as means to take security
measures?

C. Question Presented 2
1. When does internal self-determination fail enough that it validates a right to external self-
determination? Is there a right to external self-determination?
2. What does it mean when courts say that self-determination is an erga omnes obligation? What
are erga omnes obligations?
3. Are the Agnorevs a people? Why or why not?
4. What is remedial secession? Can you name successful examples of remedial succession? Has
this theory risen to the level of customary international law?
5. Does the ICCPR create an affirmative duty for Agnostica to allow or even assist the Agnorevs in
their quest for independence?
6. What is the difference between internal and external self-determination?
7. Isn't it true that territorial integrity is not an absolute rule? When and where can territorial
integrity be violated?
8. How does the ICJ's Advisory Opinion on Kosovo affect the definition of what is and is not a
people?
9. Was the referendum a legal act? If illegal, how can this court consider it a valid representation of
the popular will of the Agnorev people? If legal, what impact or effect does it have on the
situation?
10. Has the situation in East Agnostica risen to the level of severity necessary to constitute jus
cogens violations?
11. What is the legal impact of a declaration of independence?
12. If the secession is illegal, can the territory of East Agnostica be returned to Agnostica? What, if
any other avenues, could Agnostica follow to redress this situation?
13. How does the jurisprudence of the Badinter Commission affect East Agnostica's claims for
independence? Can a non-federal unit secede?
14. What is the difference between the dissolution of a state and secession? Aren't the two so
intricately connected that the difference is merely semantic?

D. Question Presented 3
1. What is rebus sic stantibus?
2. What is the doctrine of error? What does it do to treaties? How does invoking error affect your
arguments in Issue 4?
3. How would a ruling on the basis of error affect claims by either party on the continued existence
of the treaty?
4. How do you determine the "essential basis" of a treaty?
5. Can Reverentia be held liable for the actions of RMT? Is RMT an independent body? What is the
legal standard for state responsibility for acts taken by a state-owned corporation? When can you
pierce the corporate veil?
6. Has the doctrine of fundamental change of circumstances risen to be custom? Who said so and
how often has it been successfully applied in the decisions of international tribunals?
7. Is the Marthite Convention subject to the guidelines of the Vienna Convention of the Law on
Treaties?
8. Are there procedural elements of the VCLT which have risen to the level of custom?
9. Was Agnostica's denunciation of the treaty improper? What makes it proper?
10. Didn't Agnostica have a duty to negotiate with Reverentia following its unilateral announcement
of termination?
11. What are the standards for what might be a reasonable period of notice for a party attempting to
terminate a treaty?
12. What does pacta sunt servandamean? Why is it a principle this Court may apply?
 13. Has Reverentia violated the Marthite Convention independent of the actions of RMT?
E. Question Presented 4
1. For Agnostica: you just argued that you successfully terminated the treaty? Why should
Reverentia be obligated to continue to let you use the software?
2. For Reverentia: you just argued that the treaty was "in effect". How is that consistent with your
refusal to provide the software?
3. How should a court interpret a treaty? What sources should it consider?
4. Why is the meaning you suggest the "ordinary" meaning of the text?
5. What are the object and purpose of the Marthite Convention? How are they relevant?
6. When can a party unilaterally suspend performance of a treaty?
7. What is a material breach of a treaty? Did Agnostica materially breach the Marthite Convention?
8. What are countermeasures?
9. Are countermeasures different from reprisals? How/why not?
10. Shouldn't Reverentia have called upon Agnostica to comply with the treaty before taking
countermeasures? Did it? If it didn't, why is the countermeasure nonetheless lawful?
11. Is this countermeasure proportional? What if one child dies per day because of it? Ten children?
Etc.